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42 Am. Crim. L. Rev. 121 (2005)
Turning a Blind Eye to Innocence: The Legacy of Herrera v. Collins

handle is hein.journals/amcrimlr42 and id is 129 raw text is: TURNING A BLIND EYE TO INNOCENCE:
Nicholas Berg*
Herrera ranks as one of those infamous Supreme Court opinions, like
Lochner and Plessy, that is utterly repugnant to any basic sense of fairness.'
In 1993, the U.S. Supreme Court ruled in Herrera v. Collins that a prisoner
facing execution with newly discovered evidence of innocence could not obtain
review from federal courts without an additional underlying constitutional viola-
tion. Moreover, the Herrera Court found that executing such a prisoner who can
show he is probably innocent is constitutional.3 Since Herrera, seventy wrongly
convicted prisoners have been released from death row and the amount of public
information regarding the execution of innocent people has exploded.4 As one
commentator noted,
We now know that we convict innocent people of crimes, including murder,
and we know that we sometimes sentence innocent people to death. The
American public now believes that we execute innocent people, and the unease
about the specter of this happening has reached the chambers of the Supreme
Court, including those of Justice O'Connor.5
Despite the growing concern of the public and the courts, there has been no
* Georgetown University Law Center, J.D. expected 2005.
1. Brent E. Newton, A Case Study in System Unfairness: The Texas Death Penalty, 1973-1994, 1 TEx. F. ON
C.L. & C.R. 1, 34 (1993).
2. Herrera v. Collins, 506 U.S. 390 (1993).
3. Only a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of
a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a
claim. Herrera, 506 U.S. at 417 (emphasis added).
Throughout this Note, only male pronouns will be used. Female pronouns would be an inaccurate reflection of
capital defendants as ninety-eight percent of capital defendants are male. Bruce Ledewitz, Habeas Corpus as a
Safety Valvefor Innocence, 18 N.Y.U. REV. L. & Soc. CHANGE 415, 415 (1990-1991).
4. Death Penalty Information Center, Innocence: Freed From Death Row, at http://www.deathpenaltyinfo.org/
article.php?scid =6&did= I 10 (last visited Feb. 11, 2005).
5. Richard A. Rosen, Innocence and Death, 82 N.C. L. REV. 61, 63 (2003). In a speech in 2001, Justice
O'Connor said that [i]f statistics are any indication, the system may well be allowing some innocent defendants
to be executed. O'Connor Questions Death Penalty, N.Y. TIMES, July 4, 2001, at A9. Subsequently, Justice
O'Connor acknowledged concern about the recent exoneration of several death row inmates, especially
defendants found to be mentally ill. [W]e cannot ignore the fact that in recent years a disturbing number of
inmates on death row have been exonerated. These exonerations have included at least one mentally retarded
person who unwittingly confessed to a crime that he did not commit. Atkins v. Virginia, 536 U.S. 304, 320 n.25

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