The question in the title may seem straightforward, but the criminal justice system treats it as complicated.
The Constitution affords a panoply of procedural rights to criminal defendants, ranging from the right to trial by jury to the right to confront one’s accusers and the right against self-incrimination. A unifying principle behind these entitlements is an aversion to convicting and punishing innocent people. But suppose all of those procedural rights are followed, and an innocent defendant is still convicted. Shouldn’t that innocent person be released?
Recently, the MacArthur Justice Center and Korey Wise Innocence Project at the University of Colorado Law School filed a friend of the court brief in the case of Farrar v. Raemisch. Farrar was convicted of sexually abusing a girl on the basis of her testimony. She later recanted. Farrar petitioned for habeas corpus, but a three-judge panel of the Tenth Circuit held that habeas relief cannot be granted based on a “freestanding” claim of actual innocence—in other words, innocence is not a basis for relief unless a constitutional violation affected the trial. Our brief asked the full Tenth Circuit to consider this question. The court, however, declined to do so.
American constitutional history, and the deeply rooted principle that innocent people must not be criminally punished, suggests that there must be a freestanding claim to be released on the basis of actual innocence. Indeed, no command is rooted more deeply in the American legal tradition and its antecedents than the legal, moral, and philosophical injunction against punishing the innocent. Read in this context, the Fourteenth Amendment right to Due Process and the Eighth Amendment right against cruel and unusual punishment encompass a freestanding claim for release from prison based on innocence.
Aristotle himself argued “every one of us would rather acquit a guilty man as innocent than condemn an innocent man as guilty.” In the Twelfth Century, the Jewish philosopher Maimonides argued “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death once.’ And William Blackstone famously declared in his Commentaries on the Law of England: “Better that ten guilty persons escape than that one innocent suffer.”
With this provenance in English law, aversion to punishing the innocent became a central precept of the American system of justice. Enacted in 1682, William Penn’s Great Law of Pennsylvania provided that “all persons wrongfully convicted or prosecuted at law were to recover double damages against the informer or prosecutor.” When John Adams represented the British soldiers tried for the Boston Massacre, he told the jury: “We find, in the rules laid down by the greatest English Judges, who have been the brightest of mankind; We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer.”
This commitment to protecting the innocent is not universal. Rather, it is a distinctive feature of our democracy, one that differentiates the American legal tradition from authoritarian regimes. In the 1930s, for example, Chinese communists reasoned, “Better to kill a hundred innocent people than let one truly guilty person go free.”
But that is anathema to our system. For the sake of basic fairness—and as a bulwark against authoritarianism—it is time to recognize that our Constitution must be read to require that prisoners be given their freedom when newly discovered evidence establishes their innocence.