The Fallibility of Finality

By G. Ben Cohen and Michael Admirand*

“We are not final because we are infallible, but we are infallible only because we are final,” Justice Jackson described the United States Supreme Court. In no area of law does this finality have more devastating consequences than capital punishment. This Wednesday, the State of Oklahoma plans to execute Richard Glossip despite recent information suggesting his innocence. The Supreme Court is in a position to afford Mr. Glossip and other capital defendants an opportunity to present credible innocence claims even after a prior “final” decision. And yet, the Court has refused to make that allowance in the past. Justice Scalia stated his position bluntly:

With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.

The mounting evidence, however, is that the Court has had no such luck. This “embarrassing question” arises in Mr. Glossip’s case, as it has in many others in the last several decades. A recent, comprehensive study predicted that since 1973, one out of every twenty-five death sentences involved the conviction of an innocent person. A separate report found profound flaws in the application of forensic science. This led to Department of Justice review of hundreds of cases and the identification of error in thirty-three capital trials—nine of which resulted in executions.

The growing concern over wrongful convictions and executions puts the Court under scrutiny as well. The National Registry of Exonerations details 115 death row exonerations since 1989. In sixty of those cases, the defendants unsuccessfully petitioned the Court for review. In many, if not most, of those cases, the question before the Court addressed the procedures, rather than innocence. Yet, this underscores the problem: no matter how carefully the Court regulates the death penalty, the system is fallible. From these sixty cases, twenty-nine times Justices Marshall, Brennan or Blackmun dissented from the denial of certiorari on the grounds that imposition of the death penalty was unconstitutional. History has proven, at least with these cases, the dissenting Justices right.

The Supreme Court is now faced with the issue again, with this evidence of fallibility before it. This past June, the Court decided that Oklahoma’s lethal injection protocol—which will be used to execute Richard Glossip on September 30—is constitutional. Since that decision, considerable evidence has emerged that Glossip is innocent. In their attempts to save his life, Glossip’s attorneys will unquestionably ask the Court to vacate the death sentence or grant him an evidentiary hearing on his innocence. The Court will be faced with three options: first, recognize that doubts about a defendant’s guilt prohibit his execution; second, determine that the risk of error undermines the validity of capital punishment altogether; or third, remain indifferent. While the third option may be guided by the hope of avoiding “embarrassing question[s],” it is the least justifiable. Should the Court refuse to intervene, its desire for finality will assure its fallibility.

* G. Ben Cohen is Of Counsel at the Capital Appeals Project and the Promise of Justice Initiative in New Orleans, Louisiana. Michael Admirand joined the Capital Appeals Project after completing his J.D. from Harvard Law School in 2010.  While in law school, Mr. Admirand was honored with the Gary Bellow Public Service Award for his commitment to public service.

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