The Fallibility of Finality

By Michael Admirand and G. Ben Cohen *

“We are not final because we are infallible, but we are infallible only because we are final.” [1]

Justice Robert Jackson’s famous quote pinpoints the consequences of final judgments in the United States Supreme Court. These consequences are most devastating in the arena of capital punishment, where denial of certiorari or deference to a state is a death sentence. Last year, twenty-seven people were executed after the Court refused to hear further argument in their cases.[2]

When the Court reinstated the death penalty in 1976,[3] it did so with the assumption that further constitutional regulation of the death penalty could ensure that the penalty would be reserved for only the “worst of the worst,” those whose moral culpability went beyond that of the “average” murderer. This article revisits that assumption, and argues that the Court’s efforts have not only failed to adequately determine the most culpable offenders, but also have failed to ensure reliability of the underlying culpability determination.[4] By refusing to provide a constitutional safeguard against executing innocent defendants, the Court is at least partially responsible for this state of affairs. Furthermore, the preference for procedural finality over factual accuracy in the narrow circumstance of capital punishment implicates the legitimacy of the Court. This ever-present possibility of executing the innocent, we argue, should lead the Court to reconsider the need for, and excessiveness of, capital punishment.

This article will first review the Court’s minimal jurisprudence regarding the potential execution of innocent defendants. It will then provide a brief overview of the causes underlying, and data surrounding, wrongful capital convictions. The article will then highlight the Court’s own role in sanctioning these wrongful convictions, using specific reflective examples. We conclude with perhaps the most recent example of the Court’s approach to handling claims from potentially innocent capital defendants—the case of Richard Glossip—which highlights the problems with the Court’s approach and demonstrates the necessity of abolition.

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Click here to see the interactive version of Appendix A.


* Michael Admirand and G. Ben Cohen. Ideas articulated in this work are at least in part attributed to the scholarship of Robert J. Smith. Errors are our own.

[1] Brown v. Allen, 344 U.S. 443, 540 (1952) (Jackson, J., concurring in result).

[2] A twenty-eighth person, Daniel Lopez, was executed when he gave up his appeals and volunteered for execution. A full accounting of the Court’s denials is attached to this article as Appendix B.

[3] See generally Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976).

[4] For an informative discussion of the use of the terms “actual innocence” and “legal innocence,” see Emily Hughes, Innocence Unmodified, 89 N.C. L. Rev. 1083 (2011).


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