Guest post by Sarah Lucy Cooper

The Oxford Centre for Criminology recently held a symposium entitled “Wrongful Conviction and the Death Penalty: The Inevitability of Error?” This post shares some of the ideas I presented at the symposium about the interaction between the Innocence Movement and the Death Penalty Abolition Movement in America.

The Innocence Movement calls into question the application of the death penalty. To date, 321 people have been exonerated by post-conviction DNA evidence in America and, with each exoneration, the call for abolition has grown more urgent. Furthermore, the active application of the death penalty makes the need to identify the innocent and the causes of wrongful conviction more urgent. As the Death Penalty Project’s recent report points out, the risk that innocent people will be executed “alone is one reason why countries have moved towards abolition of the death penalty…” A recent study by Samuel Gross and others confirms the need for heightened concern too, finding that “… if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated.” Despite these findings, however, many assume that current frameworks – such as precedent, clemency and diligence requirements -- are effective for preventing and/or remedying wrongful conviction. In reality, however, all three have significant shortcomings.

Precedent The notion that precedent will prevent and/or remedy wrongful conviction is flawed. First, following “what has gone before,” when it comes to innocence issues, is problematic. This is because the Innocence Movement is so new and unique. History does not present us with answers to, for example, questions about DNA testing, false confessions, eyewitness error, and unreliable forensics. Consequently, the criminal justice system must respond to innocence issues in a fresh and tailored way, not in a re-hash of old rules and practices. Second, many legal precedents, in their current form and application, are not effective for preventing and/or remedying wrongful conviction. For instance, actual innocence thresholds often cannot often be satisfied without DNA evidence, despite the fact that DNA is available in no more than 10% of cases. Key due process protections like Strickland, Brady and Daubert are also inadequate. Moreover, there are precedents that actively foreclose credible innocence claims. For example, in Herrera the USSC stated actual innocence, alone, cannot be a ground for federal habeas relief, and in Osborne found that access to exculpatory DNA testing is not a right of procedural or substantive due process. Herrera and Osborne were both capital cases.

Clemency In Herrera the USSC stated that clemency was the “failsafe” of the criminal justice system. However, there are a number of reasons why clemency does not effectively handle innocence claims. First, history tells us that clemency has never truly been ‘innocentric’, or a power of legal significance, but rather a power of political expediency. Second, innocents face a plethora of obstacles including a lack of transparency, and unfavorable procedures and administrative board compositions when applying for relief via clemency. Third, the constitutional protection afforded to inmates subject to clemency procedures under Ohio Adult Parole Authority v Woodard is very thin. Woodard has allowed even the most suspect clemency procedures to pass constitutional muster. For instance, proceedings not allowing death row inmates to participate in pre-execution hearings, and proceedings where the decision-maker has declared a certain cohort of prisoners i.e., those on death row, under his regime, will never get clemency, have failed to trigger judicial intervention.

Diligence Requirements Diligence is a popular requirement of post-conviction relief rules, particularly those associated with newly discovered evidence. However, condemning an inmate because he has seemingly “sat on his rights” can be problematic. This is because -- quite innocuously – decades can pass without an innocent inmate being able to do anything significant to contribute to their release. Often, powerful circumstantial evidence of guilt exists, and inmates struggle to find exculpatory evidence. Additionally, inmates face a labyrinth of complex procedural post-conviction frameworks. Inmates must battle these frameworks with the presumption of innocence turned on its head, and often without legal assistance. Ironically though, sometimes an inmate needs time to pass in order to have a meaningful chance at proving their innocence. For instance, many exonerees have had to wait for DNA testing to be invented, the hallmarks of arson and shaken baby syndrome to be debunked, forensic identification techniques to be criticised, witnesses to recant, and undisclosed evidence to be found.

The Future: A Reason for Optimism Naturally, the inadequacy of precedent, clemency and diligence requirements for preventing and/ remedying wrongful conviction is exacerbated when an innocent is facing death. The shortcomings of these frameworks must be remedied. However, there is reason to be optimistic. A variety of innocence themed initiatives are developing across America, and innocence is a growing feature of legal, social and political discourse. This can only serve to strengthen the Death Penalty Abolition Movement. Stakeholders in the Innocence Movement and Death Penalty Abolition Movement must continue to energise these developments.

The author: Sarah Lucy Cooper is a Senior Lecturer in Law at Birmingham City University and a Fellow at the Arizona Justice Project. Her PhD considers the influence of finality and legal process theory on American post-conviction relief mechanisms, against the backdrop of the American Innocence Movement.