By: Brooke Kargman, Associate Staff<\/p>\n
There have been vast advancements in forensic science largely due to developments in DNA technology. \u00a0Many prisoners who have maintained their innocence have accessed DNA evidence ultimately substantiating their claims, which was previously unobtainable.[1]<\/a>\u00a0 Inevitably, appeals courts are now confronted with \u201cactual innocence\u201d claims, including writs of certiorari and writs of habeas corpus, from prisoners who have maintained their innocence.[2]<\/a>\u00a0 Through the use of DNA technology, more than 300 wrongfully convicted people in the United States have been exonerated.[3]<\/a>\u00a0 Included in that sum are 18 people who have served time on death row.[4]<\/a><\/p>\n The discussion about the death penalty is an ongoing debate with many different angles. \u00a0Discussing the death penalty as a suitable punishment for our future capital offenders is a proactive debate; circulating advocacy for or against punishing potential future capital offenders. \u00a0Support for the death penalty has wavered, but is currently the lowest it has been since 1972, at 60%.[5]<\/a>\u00a0 Discussions of the death penalty have now emerged into a retroactive aggressive debate. \u00a0It has been argued that a person who is \u201cactually innocent\u201d does not necessarily have the constitutional right to be released from death row.[6]<\/a><\/p>\n The question becomes: does a convicted felon who has had a full and fair criminal trial have a constitutional right to be liberated of their death sentence when their \u201cactual innocence\u201d claim is supported by new evidence?<\/p>\n Many of our history\u2019s esteemed policymakers have asserted that the Constitution is a \u201cliving document\u201d so far as allowing lawmakers to create laws that adapt to society\u2019s progressive ideals and advancements while reserving the rights written in the Constitution\u2019s text.[7]<\/a>\u00a0 Former Supreme Court Justice O\u2019Connor has said, \u201cexecution of a legally and factually innocent person would be a constitutionally intolerable event.\u201d[8]<\/a><\/p>\n The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) implemented tighter restrictions on habeas cases and expanded the deference given to federal courts.[9]<\/a>\u00a0 The Supreme Court has held that innocence is not enough and that a convicted felon does not have the constitutional right to postconviction DNA testing, even at their own expense, to prove their actual innocence.[10]<\/a>\u00a0 In the widely talked about Troy Davis death penalty case, Justice Scalia dissents to Davis\u2019 Petition for Writ of Habeas Corpus and writes, \u201c[t]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is \u201cactually\u201d innocent.\u201d[11]<\/a><\/p>\n By not finding it constitutionally obligatory to exonerate \u201cactually innocent\u201d people from their death sentence, our policymakers are keeping our Constitution stagnant. \u00a0The Eighth Amendment of our Constitution prohibits cruel and unusual punishment,[12]<\/a> and executing an innocent person in the 2000s is seemingly anything but commonsensical or in accordance with the concept of our Constitution as a \u201cliving document.\u201d<\/p>\n <\/p>\n [1]<\/a> Browse the Profiles<\/em>, INNOCENCEPROJECT.ORG, http:\/\/www.innocenceproject.org\/know\/Browse-Profiles.php (last visited Nov. 23, 2014).<\/p>\n [2]<\/a> E.g.<\/em>, Petition for Writ of Certiorari, In re Davis, 557 U.S. ___ (2009) (No. 08-1443).<\/p>\n [3]<\/a> Mission Statement<\/em>, INNOCENCEPROJECT.ORG, http:\/\/www.innocenceproject.org\/about\/Mission-Statement.php (last visited Nov. 23, 2014).<\/p>\n [4]<\/a> Id.<\/em><\/p>\n [5]<\/a> See<\/em> Jeffrey M. Jones, Americans\u2019 Support for Death Penalty Stable<\/em>, GALLUP (Oct. 23, 2014), http:\/\/www.gallup.com\/poll\/178790\/americans-support-death-penalty-stable.aspx.<\/p>\n [6]<\/a> See<\/em> Dahlia Lithwick, Why It\u2019s Constitutional to Execute an Innocent Man<\/em>, NEWSWEEK, (Sept. 2, 2009, 8:00 PM), http:\/\/www.newsweek.com\/why-its-constitutional-execute-innocent-man-79487.<\/p>\n [7]<\/a> See generally<\/em> Adam Winkler, A Revolution Too Soon: Woman Suffragists and the \u201cLiving Constitution\u201d<\/em>, 76 N.Y.U.L. Rev. 1456, 1457 (2001) (\u201c[C]onstitutional provisions are\u2026 interpreted to meet present social needs\u2026 Legal historians credit Progressive Era thinkers such as Oliver Wendell Holmes Jr., Christopher Tiedeman, Louis D. Brandeis, and Woodrow Wilson for making the \u2018earliest efforts\u2019 to adopt a changing, evolving Constitution.\u201d); Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (\u201c[T]he words of the Amendment are not precise\u2026 their scope is not static\u2026 must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.\u201d).<\/p>\n [8]<\/a> David Grann, Trial By Fire<\/em>, THE NEW YORKER (Sept. 7, 2009) http:\/\/www.newyorker.com\/magazine\/2009\/09\/07\/trial-by-fire.<\/p>\n [9]<\/a> Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.<\/p>\n [10]<\/a> Petition for Writ of Certiorari, In re Davis, 557 U.S. ___, 36-37 (2009) (No. 08-1443); DA\u2019s Office v. Osborne, 557 U.S. 52 (2009).<\/p>\n