1. Actual Innocence Should the Legal System Care?

2. Two Competing Arguments Finality and the rule of law Possibility of executing an actually innocent person

3. Finality and the Rule of Law: Herrera Majority “In any system of criminal justice, ‘innocence’ or ‘guilt’ must be determined in some sort of a judicial proceeding.” “In any system of criminal justice, ‘innocence’ or ‘guilt’ must be determined in some sort of a judicial proceeding.” “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” “[I]n the eyes of the law, petitioner does not come before the Court as one who is ‘innocent,’ but, on the contrary, as one who has been convicted by due process of law[.]” “[I]n the eyes of the law, petitioner does not come before the Court as one who is ‘innocent,’ but, on the contrary, as one who has been convicted by due process of law[.]”

4. Finality and the Rule of Law: O’Connor Concurrence “Petitioner is not innocent, in any sense of the word.” “Petitioner is not innocent, in any sense of the word.” “Petitioner therefore does not appear before us as an innocent man on the verge of execution. He is instead a legally guilty one who, refusing to accept the jury’s verdict, demands a hearing in which to have his culpability determined once again.” “Petitioner therefore does not appear before us as an innocent man on the verge of execution. He is instead a legally guilty one who, refusing to accept the jury’s verdict, demands a hearing in which to have his culpability determined once again.”

5. Finality and the Rule of Law: Boiling it Down When a defendant has been found guilty by a jury, so long as she has been given all the process guaranteed by the Constitution, she is legally guilty and has no recourse in the legal system. When a defendant has been found guilty by a jury, so long as she has been given all the process guaranteed by the Constitution, she is legally guilty and has no recourse in the legal system. If a person is actually innocent, there are other avenues, not in the legal system, to set aside the guilty verdict (i.e. clemency). If a person is actually innocent, there are other avenues, not in the legal system, to set aside the guilty verdict (i.e. clemency).

6. Execution of the Actually Innocent: Bandes Article “When a doctrine permits a result so far removed from our collective sense of justice, it is time to re-examine that doctrine.” “When a doctrine permits a result so far removed from our collective sense of justice, it is time to re-examine that doctrine.” “[S]ometimes lawyers and judges get so caught up in the minutiae of lawyering as to lost sight of basic, universal human principles.” “[S]ometimes lawyers and judges get so caught up in the minutiae of lawyering as to lost sight of basic, universal human principles.” “Since the execution of an innocent person, standing alone, ought to be considered a violation of the Constitution, it should be cognizable on habeas corpus without the need to allege an additional constitutional violation.” “Since the execution of an innocent person, standing alone, ought to be considered a violation of the Constitution, it should be cognizable on habeas corpus without the need to allege an additional constitutional violation.”

7. Comparing the Arguments So long as all due process has been given, there is no Constitutional issue— all legal avenues have been exhausted. So long as all due process has been given, there is no Constitutional issue— all legal avenues have been exhausted. Executing an actually innocent person is a Constitutional violation itself and does not need a showing of another violation in order to proceed in habeas.

8. Should the law care about actual innocence?