The author is indebted to Judy Lucero and Jeff Steutz for stimulating and helping to shape many of the thoughts underlying this article.
Actual innocence: is death different?
Article first published online: 12 APR 2009
Copyright © 2009 John Wiley & Sons, Ltd.
Behavioral Sciences & the Law
Special Issue: The Age of Innocence: Miscarriages of Justice in the 21st Century
Volume 27, Issue 3, pages 297–311, May/June 2009
How to Cite
Acker, J. R. (2009), Actual innocence: is death different?. Behav. Sci. Law, 27: 297–311. doi: 10.1002/bsl.863
- Issue published online: 26 MAY 2009
- Article first published online: 12 APR 2009
Supreme Court jurisprudence relies heavily on the premise that “death is different” from other criminal sanctions, and that capital cases entail commensurately demanding standards of reliability. Although invoked most frequently with respect to sentencing, both precedent and logic suggest that heightened reliability applies as well to guilt determination in capital trials. Nevertheless, recurrent and highly visible wrongful convictions in capital cases have affected public opinion, contributed to a precipitous decline in new death sentences, and led to calls for reforms designed to guard against the risk of executing innocent persons. This article examines the implications of the “death is different” doctrine for the problem of wrongful convictions in both capital and non-capital cases. It argues that innovations designed to enhance reliability in the special context of death-penalty prosecutions are important in their own right, but relevant new safeguards also should extend to criminal cases generally, where innocent people are similarly at risk and wrongful convictions are far more prevalent. Copyright © 2009 John Wiley & Sons, Ltd.