56 Hastings L.J. 1185 (2004-2005)
The History of Wrongful Execution

handle is hein.journals/hastlj56 and id is 1215 raw text is: The History of Wrongful Execution

BRUCE P. SMITH*
In recent years, concern that innocent persons' have been convicted,
and, more troublingly, executed has spurred extensive commentary by
scholars,2 practitioners,3 activists,4 legislators,5 j         ,6a
schlas, prcttiner,'acivits' egilaor,'judges , and members of
* Richard W. and Marie L. Corman Scholar; Co-Director, Illinois Legal History Program;
Associate Professor of Law, University of Illinois College of Law. Earlier versions of this paper were
presented at annual meetings of the American Society for Legal History and the Pacific Coast
Conference on British Studies, and at a faculty workshop at the Indiana University School of Law-
Indianapolis. I am grateful to Margareth Etienne, Patrick Keenan, Norman Lefstein, David
Lieberman, Richard McAdams, Beth Robischon, Barbara Shapiro, and those who attended earlier
presentations of this paper for their reactions. I am also grateful to Janis Johnston, Director of the
Albert E. Jenner, Jr. Memorial Law Library at the University of Illinois College of Law, for her
assistance with obtaining access to rare legal-historical sources, and to the Bodleian Library at the
University of Oxford for permitting me to consult their collection of seventeenth-century broadsides
concerning wrongful executions.
1. As used in this Article, the terms innocent or actually innocent describe persons who did
not commit either the crime(s) for which they were convicted or any related crime(s). The term
wrongfully convicted describes persons convicted in proceedings in which prejudicial legal error
occurred and, as such, includes persons who were not actually innocent of the crimes for which they
were convicted. The term wrongful execution refers to the execution of innocent persons. For
elaboration of these definitional distinctions, see Cathleen Burnett, Constructions of Innocence, 70
UMKC L. REV. 971 (2002); Daniel Givelber, Meaningless Acquittals, Meaningful Convictions: Do We
Reliably Acquit the Innocent?, 49 RUTGERS L. REV. 1317, 1346 n.92 (1997); Daniel S. Medwed, Actual
Innocents: Considerations in Selecting Cases for a New Innocence Project, 81 NEB. L. REV. 1097 (2003).
2. See, e.g., JIM DWYER, ET. AL., ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER
DISPATCHES FROM THE WRONGLY CONVICTED (2000); DAVID PROTESS & Roa WARDEN, A PROMISE OF
JUSTICE: THE EIGHTEEN-YEAR FIGHT TO SAVE FOUR INNOCENT MEN (1998); Alan W. Clarke et al.,
Executing the Innocent: The Next Step in the Marshall Hypotheses, 26 N.Y.U. REV. L. & Soc. CHANGE
309 (2000); Stanley Z. Fisher, Convictions of Innocent Persons in Massachusetts: An Overview, 12 B.U.
PUB. INT. L.J. I (2002); Samuel R. Gross, Lost Lives: Miscarriages of Justice in Capital Cases, 61 LAW &
CONTEMP. PROBS. 125 (1998); Samuel R. Gross, The Risks of Death: Why Erroneous Convictions Are
Common in Capital Cases, 44 BUFF. L. REV. 469 (1996); James S. Liebman, The Overproduction of
Death, 00 COLUM. L. REV. 2030 (2000); Lawrence C. Marshall, The Innocence Revolution and the
Death Penalty, I OHIO ST. J. CRIM. L. 573 (2004); Samuel R. Gross et al., Exonerations in the United
States 1989 Through 2003 (Apr. 19, 2004), at www.law.umich.edu/newsandinfo/exonerations-in-us.pdf.
3. A.B.A. House of Delegates, Death Penalty Moratorium Implementation Project (Feb. 3,
1997), available at http://www.abanet.org/moratorium/resolution.html (calling for a moratorium on the
death penalty until jurisdictions can adequately address the risk that wrongful executions may occur).
+ See, e.g., RICHARD DIETER, DEATH PENALTY INFORMATION CENTER, INNOCENCE AND THE DEATH
PENALTY: THE    INCREASING   DANGER   OF   EXECUTING  THE   INNOCENT   (July  1997), at
http://www.deathpenaltyinfo.org/article.php?scid=45&did=292  (identifying  twenty-one  persons
sentenced to death as of 1997 for whom there is now convincing evidence of their innocence);

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