SUPREME COURT OF THE UNITED
STATES
No.
91-7328
LEONEL TORRES
HERRERA, PETITIONER
v.
JAMES A. COLLINS, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION
on writ of certiorari to
the united states court of appeals for the fifth
circuit
[January
25, 1993]
Justice
Blackmun, with whom Justice Stevens and
Justice Souter join with respect to Parts I IV,
dissenting.
Nothing
could be more contrary to contemporary standards
of decency, see Ford v. Wainwright,
477 U.S. 399, 406 (1986), or more shocking to
the conscience, see Rochin v.
California, 342 U.S. 165, 172 (1952), than
to execute a person who is actually innocent.
I therefore
must disagree with the long and general
discussion that precedes the Court's disposition
of this case. See ante, at 6-26. That
discussion, of course, is dictum because the
Court assumes, "for the sake of argument in
deciding this case, that in a capital case a
truly persuasive demonstration of `actual
innocence' made after trial would render the
execution of a defendant unconstitutional."
Ante, at 26. Without articulating the
standard it is applying, however, the Court then
decides that this petitioner has not made a
sufficiently persuasive case. Because I believe
that in the first instance the District Court
should decide whether petitioner is entitled to
a hearing and whether he is entitled to relief
on the merits of his claim, I would reverse the
order of the Court of Appeals and remand this
case for further proceedings in the District
Court.
The Court's enumeration, ante,
at 7, of the constitu tional rights of criminal
defendants surely is entirely beside the point.
These protections sometimes fail.
[n.1] We
really are being asked to decide whether the
Constitution forbids the execution of a person
who has been validly convicted and sentenced but
who, nonetheless, can prove his innocence with
newly discovered evidence. Despite the State of
Texas' astonishing protestation to the contrary,
see Tr. of Oral Arg. 37, I do not see how the
answer can be anything but "yes."
The Eighth Amendment prohibits
"cruel and unusual punishments." This
proscription is not static but rather reflects
evolving standards of decency. Ford v.
Wainwright, 477 U. S., at 406; Gregg
v. Georgia, 428 U.S. 153, 171 (1976) (opinion
of Stewart, Powell, and Stevens, JJ.); Trop
v. Dulles, 356 U.S. 86, 101 (1958) (plurality
opinion); Weems v. United States,
217 U.S. 349, 373 (1910). I think it is crystal
clear that the execution of an innocent person
is "at odds with contemporary standards of
fairness and decency." Spaziano v.
Florida, 468 U.S. 447, 465 (1984). Indeed,
it is at odds with any standard of decencythat I
can imagine.
This Court
has ruled that punishment is excessive and
unconstitutional if it is "nothing more than the
purposeless and needless imposition of pain and
suffering," or if it is "grossly out of
proportion to the severity of the crime."
Coker v. Georgia, 433 U.S. 584, 592
(1977) (plurality opinion); Gregg v.
Georgia, 428 U. S., at 173 (opinion of
Stewart, Powell, and Stevens, JJ.). It has held
that death is an excessive punishment for rape,
Coker v. Georgia, 433 U. S., at
592, and for mere participation in a robbery
during which a killing takes place. Enmund
v. Florida, 458 U.S. 782, 797 (1982). If
it is violative of the Eighth Amendment to
execute someone who is guilty of those crimes,
then it plainly is violative of the Eighth
Amendment to execute a person who is actually
innocent. Executing an innocent person epito
mizes "the purposeless and needless imposition
of pain and suffering." Coker v.
Georgia, 433 U. S., at 592.
[n.2]
The
protection of the Eighth Amendment does not end
once a defendant has been validly convicted and
sentenced. In Johnson v. Mississippi,
486 U.S. 578 (1988), the petitioner had been
convicted of murder and sentenced to death on
the basis of three aggravating circumstances.
One of those circumstances was that he
previously had been convicted of a violent
felony in the State of NewYork. After Johnson
had been sentenced to death, the New York Court
of Appeals reversed his prior conviction.
Although there was no question that the prior
conviction was valid at the time of Johnson's
sentencing, this Court held that the Eighth
Amendment required review of the sentence
because "the jury was allowed to consider
evidence that has been revealed to be materially
inaccurate." Id., at 590.
[n.3] In
Ford v. Wainwright, supra, the
petitioner had been convicted of murder and
sentenced to death. There was no suggestion that
he was incompetent at the time of his offense,
at trial, or at sentencing, but subsequently he
exhibited changes in behavior that raised doubts
about his sanity. This Court held that Florida
was required under the Eighth Amendment to
provide an additional hearing to determine
whether Ford was men tally competent, and that
he could not be executed if he were incompetent.
477 U. S., at 410 (plurality opinion); id.,
at 422-423 (Powell, J., concurring in part and
concurring in the judgment). Both Johnson
and Ford recognize that capital
defendants may be entitled to further
proceedings because of an intervening
development even though they have been validly
convicted and sentenced to death.
Respondent
and the United States as amicus curiae
argue that the Eighth Amendment does not apply
to petitioner because he is challenging his
guilt, not his punishment. Brief for Respondent
21-23; Brief for United States as Amicus
Curiae 9-12. The majority attempts
todistinguish Ford on that basis. Ante,
at 14.
[n.4] Such
reasoning, however, not only contradicts our
decision in Beck v. Alabama, 447
U.S. 625 (1980), but also fundamentally
misconceives the nature of petitioner's argument.
Whether petitioner is viewed as challenging
simply his death sentence or also his continued
detention, he still is challenging the State's
right to punish him. Respondent and the United
States would impose a clear line between guilt
and punishment, reasoning that every claim that
concerns guilt necessarily does not involve
punishment. Such a division is far too facile.
What respondent and the United States fail to
recognize is that the legitimacy of punishment
is inextricably intertwined with guilt.
Beck
makes this clear. In Beck, the petitioner
was convicted of the capital crime of robbery
intentional killing. Under Alabama law, however,
the trial court was prohibited from giving the
jury the option of convicting him of the lesser
included offense of felony murder. We held that
precluding the instruction injected an
impermissible element of uncertainty into the
guilt phase of the trial.
"To
insure that the death penalty is indeed
imposed on the basis of `reason rather than
caprice or emotion,' we have invalidated
procedural rules that tended to diminish the
reliability of the sentencing determination.
The same reasoning must apply to rules that
diminish the reliability of the guilt
determination. Thus, if the unavailability
of a lesser included offenseinstruction
enhances the risk of an unwarranted
conviction, [the State] is constitutionally
prohibited from withdrawing that option in a
capital case." 447 U. S., at 638 (footnote
omitted).
The decision in Beck
establishes that, at least in capital cases, the
Eighth Amendment requires more than reliabil ity
in sentencing. It also mandates a reliable
determination of guilt. See also Spaziano
v. Florida, 468 U. S., at 456.
The Court
also suggests that allowing petitioner to raise
his claim of innocence would not serve society's
interest in the reliable imposition of the death
penalty because it might require a new trial
that would be less accurate than the first.
Ante, at 12. This suggestion misses the
point entirely. The question is not whether a
second trial would be more reliable than the
first but whether, in light of new evidence, the
result of the first trial is sufficiently
reliable for the State to carry out a death
sentence. Furthermore, it is far from clear that
a State will seek to retry the rare prisoner who
prevails on a claim of actual innocence. As
explained in part III, infra, I believe a
prisoner must show not just that there was
probably a reasonable doubt about his guilt but
that he is probably actually innocent. I find it
difficult to believe that any State would chose
to retry a person who meets this standard.
I believe it
contrary to any standard of decency to execute
someone who is actually innocent. Because the
Eighth Amendment applies to questions of guilt
or innocence, Beck v. Alabama, 447
U. S., at 638, and to persons upon whom a valid
sentence of death has been imposed, Johnson
v. Mississippi, 486 U. S., at 590, I also
believe that petitioner may raise an Eighth
Amendment challenge to his punishment on the
ground that he is actually innocent.
Execution of the innocent is
equally offensive to the Due Process Clause of
the Fourteenth Amendment. The majority's
discussion misinterprets petitioner's Fourteenth
Amendment claim as raising a procedural rather
than a substantive due process challenge.
[n.5]
"The
Due Process Clause of the Fifth Amendment
provides that `No person shall . . . be
deprived of life, liberty, or property,
without due process of law . . . .' This
Court has held that the Due Process Clause
protects individuals against two types of
government action. So called `substantive
due process' prevents the government from
engaging in conduct that `shocks the
conscience,' Rochin v. California,
342 U.S. 165, 172 (1952), or interferes with
rights `implicit in the concept of ordered
liberty,' Palko v. Connecticut,
302 U.S. 319, 325-326 (1937). When
government action depriving a person of life,
liberty, or property survives substantive
due process scrutiny, it must still be
implemented in a fair manner. Mathews
v. Eldridge, 424 U.S. 319, 335
(1976). This requirement has traditionally
been referred to as `procedural' due process."
United States v. Salerno, 481
U.S. 739, 746 (1987).
Petitioner cites not Mathews
v. Eldridge, 424 U.S. 319(1976), or
Medina v. California, 505 U. S. ___
(1992), in support of his due process claim, but
Rochin. Brief for Petitioner 32-33.
Just last
Term, we had occasion to explain the role of
substantive due process in our constitutional
scheme. Quoting the second Justice Harlan, we
said:
" `[T]he
full scope of the liberty guaranteed by the
Due Process Clause cannot be found in or
limited by the precise terms of the specific
guarantees elsewhere provided in the
Constitution. This "liberty" is not a series
of isolated points . . . . It is a rational
contin uum which, broadly speaking, includes
a freedom from all substantial arbitrary
impositions and purposeless restraints . . .
.' " Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U. S.
___, ___ (1992) (slip op. 6), quoting Poe
v. Ullman, 367 U.S. 497, 543 (1961) (Harlan,
J., dissenting from dismissal on
jurisdictional grounds).
Petitioner's claim falls within
our due process precedents. In Rochin,
deputy sheriffs investigating narcotics sales
broke into Rochin's room and observed him put
two capsules in his mouth. The deputies
attempted to remove the capsules from his mouth
and, having failed, took Rochin to a hospital
and had his stomach pumped. The capsules were
found to contain morphine. The Court held that
the deputies' conduct "shock[ed] the conscience"
and violated due process. 342 U. S., at 172. "Illegally
breaking into the privacy of the petitioner, the
struggle to open his mouth and remove what was
there, the forcible extraction of his stomach's
contents--this course of proceeding by agents of
government to obtain evidence is bound to offend
even hardened sensibilities. They are methods
too close to the rack and the screw to permit of
constitutional differentiation." Ibid.
The lethal injection that petitioner faces as an
allegedly innocent person is certainly closer to
the rack and the screw than thestomach pump
condemned in Rochin. Execution of an
innocent person is the ultimate " `arbitrary
impositio[n].' " Planned Parenthood, 505
U. S., at ___ (slip op. 6). It is an imposition
from which one never recovers and for which one
can never be compensated. Thus, I also believe
that petitioner may raise a substantive due
process challenge to his punishment on the
ground that he is actually innocent.
Given my conclusion that it
violates the Eighth and Fourteenth Amendments to
execute a person who is actually innocent, I
find no bar in Townsend v. Sain,
372 U.S. 293 (1963), to consideration of an
actual innocence claim. Newly discovered
evidence of petitioner's innocence does bear on
the constitutionality of his execution. Of
course, it could be argued this is in some
tension with Townsend's statement, id.,
at 317, that "the existence merely of newly
discovered evidence relevant to the guilt of a
state prisoner is not a ground for relief on
federal habeas corpus." That statement, however,
is no more than distant dictum here, for we
never had been asked to consider whether the
execution of an innocent person violates the
Constitution.
The majority's discussion of
petitioner's constitutional claims is even more
perverse when viewed in the light of this
Court's recent habeas jurisprudence. Beginning
with a trio of decisions in 1986, this Court
shifted the focus of federal habeas review of
successive, abusive, or defaulted claims away
from the preservation of constitutional rights
to a fact based inquiry into the habeas
petitioner's guilt or innocence. See Kuhlmann
v. Wilson, 477 U.S. 436, 454 (plurality
opinion); Murray v. Carrier, 477
U.S. 478, 496 Smith v. Murray, 477
U.S. 527, 537; see alsoMcCleskey v.
Zant, 499 U. S. ___, ___ (1991) (slip op.
24-25). The Court sought to strike a balance
between the State's interest in the finality of
its criminal judgments and the prisoner's
interest in access to a forum to test the basic
justice of his sentence. Kuhlmann v.
Wilson, 477 U. S., at 452. In striking this
balance, the Court adopted the view of Judge
Friendly that there should be an exception to
the concept of finality when a prisoner can make
a colorable claim of actual innocence. Friendly,
Is Innocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U. Chi. L. Rev. 142, 160
(1970).
Justice
Powell, writing for the plurality in Wilson,
explained the reason for focusing on innocence:
"The
prisoner may have a vital interest in having
a second chance to test the fundamental
justice of his incarceration. Even where, as
here, the many judges who have reviewed the
prisoner's claims in several proceedings
provided by the State and on his first
petition for federal habeas corpus have
determined that his trial was free from
constitutional error, a prisoner retains a
powerful and legitimate interest in
obtaining his release from custody if he is
innocent of the charge for which he was
incarcerated. That interest does not extend,
however, to prisoners whose guilt is
conceded or plain." 477 U. S., at 452.
In other words, even a prisoner
who appears to have had a constitutionally
perfect trial, "retains a powerful and
legitimate interest in obtaining his release
from custody if he is innocent of the charge for
which he was incarcerated." It is obvious that
this reasoning extends beyond the context of
successive, abusive, or defaulted claims to
substantive claims of actual innocence. Indeed,
Judge Friendly recognized that substantive
claims of actual innocence should be cognizable
on federal habeas. 38 U. Chi. L. Rev., at
159-160, and n. 87.
Having
adopted an "actual innocence" requirement
forreview of abusive, successive, or defaulted
claims, however, the majority would now take the
position that "the claim of `actual innocence'
is not itself a constitutional claim, but
instead a gateway through which a habeas
petitioner must pass to have his otherwise
barred constitutional claim considered on the
merits." Ante, at 13. In other words,
having held that a prisoner who is incarcerated
in violation of the Constitution must show he is
actually innocent to obtain relief, the majority
would now hold that a prisoner who is actually
innocent must show a constitutional violation to
obtain relief. The only principle that would
appear to reconcile these two positions is the
principle that habeas relief should be denied
whenever possible.
The Eighth and Fourteenth
Amendments, of course, are binding on the States,
and one would normally expect the States to
adopt procedures to consider claims of actual
innocence based on newly discovered evidence.
See Ford v. Wainwright, 477 U. S.,
at 411-417 (plurality opinion) (minimum
requirements for state court proceeding to
determine competency to be executed). The
majority's disposition of this case, however,
leaves the States uncertain of their
constitutional obligations.
Whatever procedures a State might
adopt to hear actual innocence claims, one thing
is certain: The possibility of executive
clemency is not sufficient to satisfy the
requirements of the Eighth and Fourteenth
Amendments. The majority correctly points out:
"A pardon is an act of grace." Ante, at
22. The vindication of rights guaranteed by the
Constitution has never been made to turn on the
unreviewable discretion of an executive official
or administrative tribunal. Indeed, in Ford
v. Wainwright, weexplicitly rejected the
argument that executive clemency was adequate to
vindicate the Eighth Amendment right not to be
executed if one is insane. 477 U. S., at 416.
The possibility of executive clemency "exists in
every case in which a defendant challenges his
sentence under the Eighth Amendment. Recognition
of such a bare possibility would make judicial
review under the Eighth Amendment meaningless."
Solem v. Helm, 463 U.S. 277, 303
(1983).
"The
government of the United States has been
emphatically termed a government of laws, and
not of men. It will certainly cease to deserve
this high appellation, if the laws furnish no
remedy for the violation of a vested legal right."
Marbury v. Madison, 1 Cranch 137,
163 (1803). If the exercise of a legal right
turns on "an act of grace," then we no longer
live under a government of laws. "The very
purpose of a Bill of Rights was to withdraw
certain subjects from the vicissitudes of
political controversy, to place them beyond the
reach of majorities and officials and to
establish them as legal principles to be applied
by the courts." West Virginia State Board of
Education v. Barnette, 319 U.S. 624,
638 (1943). It is understandable, therefore,
that the majority does not say that the
vindication of petitioner's constitutional
rights may be left to executive clemency.
Like other constitutional claims,
Eighth and Fourteenth Amendment claims of actual
innocence advanced on behalf of a state prisoner
can and should be heard in state court. If a
State provides a judicial procedure for raising
such claims, the prisoner may be required to
exhaust that procedure before taking his claim
of actual innocence to federal court. See 28
U.S.C. 2254(b) and (c). Furthermore, state court
determinations of factual issues relating to the
claim would be entitled to a presumption of
correctness in any subsequent federal habeas
proceeding. See 28 U.S.C. § 2254(d).
Texas
provides no judicial procedure for hearing
petitioner's claim of actual innocence and his
habeas petition was properly filed in district
court under 28 U.S.C. § 2254. The district court
is entitled to dismiss the petition summarily
only if "it plainly appears from the face of the
petition and any exhibits annexed to it that the
petitioner is not entitled to relief." 28 U.S.C.
§ 2254 Rule 4. If, as is the case here, the
petition raises factual questions and the State
has failed to provide a full and fair hearing,
the district court is required to hold an
evidentiary hearing. Townsend v. Sain,
372 U. S., at 313.
Because the
present federal petition is petitioner's second,
he must either show cause for and prejudice from
failing to raise the claim in his first petition
or show that he falls within the "actual
innocence" exception to the cause and prejudice
requirement. McCleskey v. Zant,
499 U. S., at ___ (slip op. 25-26). If
petitioner can show that he is entitled to
relief on the merits of his actual innocence
claim, however, he certainly can show that he
falls within the "actual innocence" exception to
the cause and prejudice requirement and
McCleskey would not bar relief.
The question that remains is what
showing should be required to obtain relief on
the merits of an Eighth or Fourteenth Amendment
claim of actual innocence. I agree with the
majority that "in state criminal proceedings the
trial is the paramount event for determining the
guilt or innocence of the defendant." Ante,
at 25. I also think that "a truly persuasive
demonstration of `actual innocence' made after
trial would render the execution of a defendant
unconstitutional." Ante, at 26. The
question is what "a truly persuasive
demonstration" entails, a question the
majority's disposition of this case leaves open.
In
articulating the "actual innocence" exception in
our habeas jurisprudence, this Court has adopted
a standard requiring the petitioner to show a "
`fair probability that,in light of all the
evidence . . . , the trier of facts would have
entertained a reasonable doubt of his guilt.' "
Kuhlmann v. Wilson, 477 U. S., at
455, n. 17. In other words, the habeas
petitioner must show that there probably would
be a reasonable doubt. See also Murray v.
Carrier, 477 U. S., at 496 (exception
applies when a constitutional violation has "probably
resulted" in a mistaken conviction);
McCleskey v. Zant, 499 U.S., at ___
(slip op. 25) (exception applies when a
constitutional violation "probably has caused" a
mistaken conviction).
[n.6]
I think the
standard for relief on the merits of an actual
innocence claim must be higher than the
threshold standard for merely reaching that
claim or any other claim that has been
procedurally defaulted or is successive or
abusive. I would hold that, to obtain relief on
a claim of actual innocence, the petitioner must
show that he probably is innocent. This standard
is supported by several considerations. First,
new evidence of innocence may be discovered long
after the defendant's conviction. Given the
passage of time, it may be difficult for the
State to retry a defendant who obtains relief
from hisconviction or sentence on an actual
innocence claim. The actual innocence proceeding
thus may constitute the final word on whether
the defendant may be punished. In light of this
fact, an otherwise constitutionally valid
conviction or sentence should not be set aside
lightly. Second, conviction after a
constitutionally adequate trial strips the
defendant of the presumption of innocence. The
government bears the burden of proving the
defendant's guilt beyond a reasonable doubt,
Jackson v. Virginia, 443 U.S. 307,
315 (1979); In re Winship, 397 U.S. 358,
364 (1970), but once the government has done so,
the burden of proving innocence must shift to
the convicted defendant. The actual innocence
inquiry is therefore distinguishable from review
for sufficiency of the evidence, where the
question is not whether the defendant is
innocent but whether the government has met its
constitutional burden of proving the defendant's
guilt beyond a reasonable doubt. When a
defendant seeks to challenge the determination
of guilt after he has been validly convicted and
sentenced, it is fair to place on him the burden
of proving his innocence, not just raising doubt
about his guilt.
In
considering whether a prisoner is entitled to
relief on an actual innocence claim, a court
should take all the evidence into account,
giving due regard to its reliability. See
Sawyer v. Whitley, 505 U. S., at ___,
n. 5 (1992) (slip op. 5, n. 5); Kuhlmann
v. Wilson, 477 U. S., at 455, n. 17;
Friendly, 38 U. Chi. L. Rev., at 160. Because
placing the burden on the prisoner to prove
innocence creates a presumption that the
conviction is valid, it is not necessary or
appropriate to make further presumptions about
the reliability of newly discovered evidence
generally. Rather, the court charged with
deciding such a claim should make a case by case
determination about the reliability of the newly
discovered evidence under the circumstances. The
court then should weigh the evidence in favor of
the prisoner against the evidence of his guilt.
Obviously, the stronger the evidence of the
prisoner'sguilt, the more persuasive the newly
discovered evidence of innocence must be. A
prisoner raising an actual innocence claim in a
federal habeas petition is not entitled to
discovery as a matter of right. Harris v.
Nelson, 394 U.S. 286, 295 (1969); 28
U.S.C. § 2254 Rule 6. The district court retains
discretion to order discovery, how ever, when it
would help the court make a reliable
determination with respect to the prisoner's
claim. Harris v. Nelson, 395 U.
S., at 299-300; see Advisory Committee Note to
28 U.S.C. § 2254 Rule 6.
It should be
clear that the standard I would adopt would not
convert the federal courts into " `forums in
which to relitigate state trials.' " Ante,
at 9, quoting Barefoot v. Estelle,
463 U.S. 880, 887 (1983). It would not "require
the habeas court to hear testimony from the
witnesses who testified at the trial," ante,
at 11, though, if the petition warrants a
hearing, it may require the habeas court to hear
the testimony of "those who made the statements
in the affidavits which petitioner has presented."
Ibid. I believe that if a prisoner can
show that he is probably actually innocent, in
light of all the evidence, then he has made "a
truly persuasive demonstration," ante, at
26, and his execution would violate the
Constitution. I would so hold.
In this case, the District Court
determined that petitioner's newly discovered
evidence warranted further consideration.
Because the District Court doubted its own
authority to consider the new evidence, it
thought that petitioner's claim of actual
innocence should be brought in state court, see
App. 38-39, but it clearly did not think that
petitioner's evidence was so insubstantial that
it could be dismissed without any hearing at all.
[n.7]
I wouldreverse the order of the Court of Appeals
and remand the case to the District Court to
consider whether petitioner has shown, in light
of all the evidence, that he is probably
actually innocent.
I think it
is unwise for this Court to step into the shoes
of a district court and rule on this petition in
the first instance. If this Court wishes to act
as a district court, however, it must also be
bound by the rules that govern consideration of
habeas petitions in district court. A district
court may summarily dismiss a habeas petition
only if "it plainly appears from the face of the
petition and any exhibits annexed to it that the
petitioner is not entitled to relief." 28 U.S.C.
§ 2254 Rule 4. In one of the affidavits, Hector
Villarreal, a licensed attorney and former state
court judge, swears under penalty of perjury
that his client Raul Herrera confessed that he,
and not petitioner, committed the murders. No
matter what the majority may think of the
inconsistencies in the affidavits or the
strength of the evidence presented at trial,
this affidavit alone is sufficient to raise
factual questions concerning petitioner's
innocence that cannot be resolved simply by
examining the affidavits and the petition.
I do not
understand why the majority so severely faults
petitioner for relying only on affidavits.
Ante, at 26. It is common to rely on
affidavits at the preliminary consideration
stage of a habeas proceeding. The opportunity
for cross examination and credibility
determinations comes at the hearing, assuming
that the petitioner is entitled to one. It makes
no sense for this Court to impugn the
reliability of petitioner's evidence on the
ground that its credibility has not been tested
when the reason its credibility has not been
tested is that petitioner's habeas proceeding
has been truncated by the Court of Appeals and
now by this Court. In its haste to deny
petitioner relief, the majority seems to confuse
the question whether the petition may be
dismissed summarily with the question whether
petitioner is entitled to relief on the merits
of his claim.
I have voiced disappointment over
this Court's obvious eagerness to do away with
any restriction on the States' power to execute
whomever and however they please. See Coleman
v. Thompson, 501 U. S. ___, ___ (1991)
(slip op. 1) (dissenting opinion). See also
Coleman v. Thompson, 504 U. S. ___
(1992) (dissent from denial of stay of execution).
I have also expressed doubts about whether, in
the absence of such restrictions, capital
punishment remains constitutional at all.
Sawyer v. Whitley, 505 U. S., at ___
(slip op. 8-11) (opinion concurring in the
judgment). Of one thing, however, I am certain.
Just as an execution without adequate safeguards
is unacceptable, so too is an execution when the
condemned prisoner can prove that he is innocent.
The execution of a person who can show that he
is innocent comes perilously close to simple
murder.
*****
Notes
