Did the US Supreme Court say 'actual innocence is no bar to execution'?

Answer 1

A full text search of all US Supreme Court case Opinions leads to the conclusion that no one in the history of the Court has ever written "actual innocence is no bar to execution," although there are claims to the contrary all over the internet. Opponents of the death penalty usually attribute the quote to Justice Scalia or Justice Thomas, the Supreme Court's most conservative members, and the belief apparently arises from conclusions drawn about the majority decision in Herrera v. Collins, 506 US 390 (1993). Former Chief Justice William H. Rehnquist wrote the Court's opinion in the instant case.

Most likely, the infamous words are drawn either from Chief Justice Rehnquist's explanation that the Court is not a trier of fact (trial court) but is charged with determining whether a defendant's rights were violated under the Constitution, or from Justice Blackmun's dissent (which was Joined by Justices Stevens and Souter) that there is no constitutional prohibition against considering Herrera's evidence, and that the case should be remanded to District Court for a hearing on the viability of the evidence.

In the majority opinion, Rehnquist wrote: "Actual innocence is not itself a constitutional claim." Blackmun countered, in part I, C, on page 437: "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."

Justice O'Connor, who voted with the majority to deny Herrera's petition for habeas relief, stated in her concurring opinion (which Justice Kennedy joined): "...the execution of a legally and factually innocent person would be a constitutionally intolerable event." Justice White, who concurred with the decision but not the opinion, appeared to believe the evidence and circumstances of presentation, ten years after the case was initially tried and mere weeks before Herrera's scheduled execution, was not persuasive of actual innocence: "In voting to affirm, I assume that a persuasive showing of "actual innocence" made after trial, even though made after the expiration of the time provided by law for the presentation of newly discovered evidence, would render unconstitutional the execution of petitioner in this case. To be entitled to relief, however, petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, "no rational trier of fact could [find] proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U. S. 307, 324 (1979). For the reasons stated in the Court's opinion, petitioner's showing falls far short of satisfying even that standard, and I therefore concur in the judgment."

UPDATE On August 17, 2009, the US Supreme Court granted a writ of habeas corpus ordering the District Court to conduct a hearing on the new evidence of "actual innocence" in the case of death row prisoner Troy Anthony Davis, In re Troy Anthony Davis, 557 US ___ (2009) No. 08-1443 (the docket number). The motion was decided by five Justices: Justice Stevens authored the order in which Justice Ginsberg and Justice Breyer joined (Justice Stevens earlier dissented in the Herrera case). Justice Sotomayor took no part in the decision.

In his written Opinion, Justice Stevens said: "The motion of NAACP, et al. for leave to file a brief as amici curiae is granted. The motion of Bob Barr, et al. for leave to file a brief as amici curiae is granted. The petition for a writ of habeas corpus is transferred to the United States District Court for the Southern District of Georgia for hearing and determination. The District Court should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence." and in response to Justice Scalia's (joined by Justice Thomas) dissent, Justice Stevens wrote: "JUSTICE SCALIA's dissent is wrong in two respects. First, he assumes as a matter of fact that petitioner Davis is guilty of the murder of Officer MacPhail. He does this even though seven of the State's key witnesses have recanted their trial testimony; several individuals have implicated the State's principal witness as the shooter; and "no court," state or federal, "has ever conducted a hearing to assess the reliability of the score of [postconviction] affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence," 565 F. 3d 810, 827 (CA11 2009) (Barkett, J., dissenting) (internal quotation marks omitted). The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing."

To read the full opinion in Herrera v. Collins, and the order for Davis' evidentiary hearing, see Related Links, below.