Recalibrating Constitutional Innocence Protection

• Publication year: 2021

RECALIBRATING CONSTITUTIONAL INNOCENCE PROTECTION

Robert J. Smith(fn*)

Abstract: This Article examines the constitutional nature of the right of a prisoner to receive post-conviction relief based solely on the claim that he(fn1) is innocent. Part I explores innocence protection as an animating value of constitutional criminal procedure (Part I.A) and describes how developments in the way that crimes are investigated, proved, and re-examined have dislodged the trial from its place at the center of the constitutional criminal procedure universe (Part I.B). Part II explores how realigning the importance of innocence protection with the practical realities of our criminal justice system would impact the regulation of post-conviction procedures. It also is divided into two sections. Part II.A provides an overview of how the U.S. Supreme Court has treated innocence claims to date. First, it considers gateway innocence claims-those in which the prisoner asserts that new evidence of his factual innocence should permit substantive review of an otherwise defaulted claim that he received a constitutionally deficient trial. It also considers freestanding innocence claims-those in which a prisoner asserts that new evidence of his factual innocence warrants relief despite the fact that the conviction stemmed from a constitutionally sound trial. Part II.B articulates a three-tiered framework-conviction relief, execution relief, gateway innocence-for adjudicating such claims.

INTRODUCTION ................................................................................ 140

I. INNOCENCE PROTECTION AND THE DECLINE OF THE TRIAL ........................................................................................... 147

A. Innocence Protection Is a Transcendent Constitutional Value .................................................................................... 147

B. The Trial Is No Longer the Penultimate Place for Innocence Protection ............................................................ 151

1. Changes in Investigative, Trial, and Sentencing Procedures ................................................................. 153

2. Erosion of Confidence in Determinations of Criminal Liability ..................................................... 156

a. Eyewitness Identification. . ................................... 156

b. False Confessions ................................................. 157

c. Misremembering and Misinterpreting Evidence .. 159

3. Changes in the Availability and Reliability of Post-Conviction Evidence ......................................... 160

C. Mechanisms for Realigning Constitutional Innocence Protection ............................................................................. 163

II. POST-CONVICTION INNOCENCE CLAIMS SHOULD BE VIEWED THROUGH THE INNOCENCE-PROTECTION FRAMEWORK ............................................................................. 168

A. Overview of Post-Conviction Innocence Cases and the U.S. Supreme Court ............................................................. 169

1. Gateway Innocence ................................................... 169

2. Freestanding Innocence Claims ................................ 171

B. The Three-Tiered Proposal ................................................... 176

1. Conviction-Relief ..................................................... 182

2. Execution Relief ....................................................... 188

3. Gateway Innocence Claims ...................................... 195

CONCLUSION .................................................................................... 203

INTRODUCTION

Society suffers thrice when it convicts an innocent person. First, as a retributive matter, the harm done to society has not been rectified but amplified. Second, the real perpetrator is still "out there," which, from a public safety standpoint, might not seem significant in the context of small-time marijuana distribution or tax fraud, but means much more in the case of a murderer or serial rapist. Finally, when it convicts-and especially if it executes-an innocent person, society suffers in terms of both the perceived legitimacy of its power to allocate punishment and the criminal justice system's competence to protect innocent citizens from unjust punishment.

The Constitution's Framers recognized the paramount importance of innocence protection. Though there is no text in the Constitution that reads, "Congress shall pass no law to convict an innocent person" in the same way that the First Amendment reads, "Congress shall pass no law . . . abridging speech," innocence protection is an "axiomatic and elementary" value of constitutional criminal procedure.(fn2) Its spirit animates the Fifth(fn3) and Sixth Amendments.(fn4) The lack of culpability that it represents serves as the baseline against which grossly disproportionate sentences are measured under the Eighth Amendment.(fn5) It is the reason for providing staples of due process such as the presumption of innocence and the requirement that the prosecution prove each element of an offense beyond a reasonable doubt.(fn6)

The purpose of most innocence protection mechanisms is to guard against wrongful conviction at trial. This Article suggests the need to reconsider the trial as the center of gravity for innocence protection. At common law, a sentence was rendered shortly after the conviction.(fn7) No real ability to house prisoners for long periods existed.(fn8) Punishment was physically severe, but temporally limited.(fn9) Even if a longer period of time between conviction and the completion of the punishment had existed at the founding, in a world without forensic science, the best evidence likely already had been introduced at trial. Traditional forms of evidence uniformly became less reliable following the trial.(fn10) Witnesses died. Memories faded. Evidence decayed. Other societal interests, such as finality, comity, and judicial economy, weighed heavily against upsetting verdicts.(fn11)

The balance of interests has shifted substantially over the past quarter century.(fn12) A rapid escalation in the quality and quantity of scientific evidence, including new tools and modes of analysis, has meant that for the first time in history some forms of evidence can become more reliable with time. Meanwhile, the ability to house prisoners long-term has provided more of an opportunity for innocence to be discovered posttrial. The perceived reliability of traditional forms of evidence, such as eyewitness identification testimony and confessions, has diminished significantly. Worse, perhaps, social cognition research demonstrates that fact-finders sometimes assign probative force to, or misremember evidence based on, arbitrary factors such as race.(fn13) The Framers could not have envisioned this altered criminal justice landscape.

Nor could the Framers have foreseen the extent to which innocent citizens are convicted of crimes they did not commit. There have been 289 DNA-based exonerations since 1989.(fn14) Seventeen of those prisoners had been sentenced to death.(fn15) When one considers both DNA and non-DNA cases together, there have been more than 600 known wrongful convictions since 1973.(fn16) One hundred forty of those exonerations involved citizens who had been sentenced to death.(fn17) This is not a passing phenomenon. From eyewitness identification science(fn18) to the diagnosis of shaken baby syndrome,(fn19) there are fundamental flaws in the evidence that prosecutors regularly use to secure convictions. At the same time, overworked and underpaid defenders often are unable to thoroughly investigate solid pretrial claims of innocence.(fn20) These developments signal that a substantial number of innocent women and men are residing within United States prison walls.(fn21)

Just how substantial? Though he has emphasized that the full scope of the problem is "unknown and frustratingly unknowable," Professor Samuel Gross has labeled the known cases of wrongful conviction as "the tip of the iceberg."(fn22) Professor Michael Risinger estimates the wrongful conviction rate at as high as five percent.(fn23) At the other end of the spectrum, renowned district attorney Joshua Marquis estimates the wrongful conviction rate at .027%.(fn24) In his concurring opinion in Kansas v. Marsh,(fn25) Justice Antonin Scalia adopted the Marquis estimate-which he phrased as a 99.973% success rate.(fn26) Assuming Marquis and Justice Scalia are correct that the wrongful conviction rate is only .027%, what does that mean in absolute terms? It may help to consider the analogy of plane crashes.(fn27) Roughly 18,000 flights arrive or depart Atlanta's Hartsfield-Jackson airport each week.(fn28) If five of those planes crashed- roughly .027% of flights-operations at the airport would cease immediately. So, too, would 125 people wrongfully imprisoned annually (.027% of all state court felony convictions) represent a disturbing number of wrongful convictions.(fn29)

The rise of scientific evidence, the discovery of flaws in the traditional forms of evidence relied upon at trial, and the realization that our criminal justice system results in the conviction of innocent defendants in previously unimaginable numbers force a reexamination of how the aims of innocence...