Document Type
Article
Publication Title
University of Pittsburgh Law Review
Publication Date
2003
Volume
64
First Page
263
Abstract
(Excerpt)
[Does it violate the Constitution] to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be "actually innocent." ... [l]t is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.
Justice Scalia, joined by Justice Thomas, concurring in Herrera v. Collins.
Should innocent people be imprisoned as criminals? More precisely, given the impossibility of absolute knowledge, should those who now seem innocent, to the very best of our capacity to determine such matters, nevertheless continue to serve sentences because at one time guilt seemed highly probable? On the surface it borders on the ridiculous to ask the question. But Supreme Court opinions such as Herrera have made it necessary to explore this question.
All systems of justice are imperfect. When a mistake is made, innocent defendants are convicted of crimes, sometimes capital crimes. When those convictions become final, after all appeals and collateral challenges, what then do we say about the prisoner? Two responses are typically given, one by the United States Supreme Court and one by critics of the Court's response. We will argue that both answers are unsatisfying and, ultimately, unhelpful.
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