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42 Tulsa L. Rev. 277 (2006-2007)
Is It Constitutional to Executive Someone Who Is Innocent (And If It Isn't, How Can It Be Stopped following House v. Bell)

handle is hein.journals/tlj42 and id is 285 raw text is: IS IT CONSTITUTIONAL TO EXECUTE SOMEONE
David R. Dow,* Jared Tyler,** Frances Bourliot,*** Jennifer
We begin with a question that might seem ridiculous: does the Constitution
prohibit the execution of someone who is actually innocent? Remarkably, this question
remains open. In this article, we discuss how a death row inmate who has strong
evidence of actual innocence can gain legal relief in postconviction proceedings on those
grounds in the aftermath of the Supreme Court's decision in House v. Bell. 1
Much of our analysis is applicable to all criminal cases, not just death penalty
cases. In certain respects, however, death penalty cases are unique. Several states
provide for special procedural rules in capital cases, and the so-called death is different
doctrine generates a more robust set of constitutional claims for capital defendants and
death-sentenced   inmates than    for other actors    in  the  criminal justice   arena.2
Consequently, although much of our analysis may well have broader application, our
focus is on capital cases.
The general issue we are addressing concerns a death-sentenced inmate who
identifies new evidence that, viewed in the context of all the evidence, suggests that he3
is innocent of the crime (as distinguished from innocent of the sentence).4 Necessarily,
* University Distinguished Professor, University of Houston Law Center. I am grateful to the University
of Houston Law Foundation for financial support. The argument also benefited from the opportunity to address
this issue at the National Innocence Network Conference at the University of Washington School of Law and
from conversations and e-mail exchanges with Nina Morrison at the Innocence Project in New York. In
addition, the material presented in Appendix A and Appendix B was collected and analyzed in cooperation
with the Texas Appleseed Foundation and Texas StandDown.
** Staff Attorney, Texas Defender Service.
*** Research Fellow, Texas Innocence Network.
**** Staff Attorney, Nevada Legal Services.
1. 126 S. Ct. 2064 (2006).
2. See e.g. Gardner v. Fla., 430 U.S. 349 (1977); Woodson v. N.C., 428 U.S. 280 (1976). Justice Scalia
has been on a mission to jettison this basic idea. E.g. Atkins v. Va., 536 U.S. 304, 352-53 (2002) (Scalia, J.,
3. We use the masculine pronoun throughout this article because nearly all death row inmates are men.
4. Because a death penalty trial is actually two trials-the jury determines whether the defendant
committed a death-eligible crime at the first trial and, assuming the defendant was found guilty of a death-
eligible offense at the first trial, determines whether the defendant should be sentenced to death at the second
trial-it is possible for a death row inmate to be guilty of the offense but improperly condemned to death. It is
therefore possible, though semantically clumsy, for someone to be innocent of a sentence. See e.g. Sawyer v.
Whitley, 505 U.S. 333 (1992).

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