Although a majority of the United States Supreme Court theoretically accepts that the state-sanctioned killing of a factually innocent person is unconstitutional, it has been reluctant to announce a workable standard for individuals raising postconviction freestanding claims of actual innocence in capital cases. This Article explores how such claims should be addressed. It begins by examining the distinctions the Court has drawn between freestanding claims of innocence and those asserted in connection with other constitutional violations. Although the Court theoretically recognized the former in Herrera v. Collins, it has failed to articulate a clear standard to govern these claims, and it left great confusion regarding the available remedy. This Article argues that the development of these standards and remedies must be guided by the retributive principles that serve as the basis of the Court’s Eighth Amendment jurisprudence. With these principles in mind, this Article then proposes a tiered system of review for freestanding innocence claims that employs different standards depending on the remedy the petitioner seeks. This tiered system of standards and remedies would accord appropriate deference to the States’ interests in finality and preservation of prosecutorial and judicial resources, confer appropriate weight to the substantial liberty interests of the petitioner subject to execution, and give valid effect to the requirements of the Eighth Amendment as it applies to capital cases.
Judith M. Barger,
Innocence Found: Retribution, Capital Punishment, and the Eighth Amendment,
46 Loy. L.A. L. Rev. 1
Available at: http://digitalcommons.lmu.edu/llr/vol46/iss1/1