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Should States Be Held Liable for Executing an Innocent Individual?

He was afraid of the dark . . . [and] afraid of a Chihuahua this big.  So I know my brother couldn’t commit such a crime. . . . I know dead in my heart that he couldn’t commit such a crime.” – Rose DeLuna

Rose’s brother, Carlos DeLuna, was executed in the State of Texas in 1989, at the age of 27.  DeLuna’s whole family was shocked by the news that he was a murderer and believed it was impossible.  According to them, DeLuna was just not that type of guy.  Yes, he had a criminal record, but something as extreme as murder was not possible for DeLuna.  The evidence against DeLuna, however, seemed compelling.

Carlos DeLuna was sentenced to death for murdering Wanda Lopez during a gas station robbery that occurred on February 4, 1983.  Police found DeLuna hiding under a pickup truck a few blocks from the crime scene.  In his pocket was a rolled up wad of $149. 

James Liebman, a professor at Columbia University School of Law, uncovered the full story of Carlos DeLuna. Read the story. 
Multiple eyewitnesses declared that DeLuna was the murderer and placed him at the crime scene.  This was not DeLuna’s first run in with the law; in fact, DeLuna was paroled just thirty-six days prior to the murder, after having been in jail for violating parole.

While the evidence against DeLuna seemed compelling, it was actually far from being strong evidence.  The eyewitness statements and identifications actually conflicted with one another; one eyewitness even later stated that he was only 55% sure DeLuna was the murderer, despite telling police at the time that he was certain.  The store owner stated that the robber could not have taken more than $20; DeLuna had $149.  The makeup of the crime scene suggested the murderer would be covered in blood; DeLuna was found completely clean.  Finally, another man, Carlos Hernandez, had admitted to the crime on multiple occasions.

“If a new trial was somehow able to be conducted today, a jury would acquit DeLuna” – Richard Dieter, Executive Director of the DPIC
Many believe that DeLuna was actually innocent of the crime that he was executed for.  Unfortunately, DeLuna is not the first innocent person to face execution.  The Death Penalty Information Center (DPIC) lists ten executions, since the death penalty was reinstated in 1976, in which the evidence shows that those executed were actually innocent.  Besides wrongful executions, according to the DPIC, 142 death row inmates have been exonerated while on death row since 1973.

The execution of an innocent individual, therefore, is not out of the realm of possibility and has even likely occurred on at least ten occasions.  While the Supreme Court has not officially ruled that executing an innocent person violates the Eighth Amendment’s prohibition against cruel and unusual punishment, it has recognized the appeal of that ruling.  Concurring justices in Herrera v. Collins even stated that “executing the innocent is inconsistent with the Constitution” and would be a “constitutionally intolerable event.”  Unfortunately, despite the permanency of an execution and the cruelty of executing an innocent individual, there is currently no remedy for a wrongful execution.

The basis of states’ sovereign immunity is the Eleventh Amendment, which states “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
 Typically, when harm is caused to an individual by another, tort law attempts to remedy the situation by providing some form of compensation to the injured individual.  In cases where the injured individual is deceased, survival claims and wrongful death claims provide the remedy.  When the state government, however, is the cause of an individual’s injury, the government is protected from tort liability through sovereign immunity.  Therefore, in the case of Carlos DeLuna, or of any other wrongfully executed individual, neither DeLuna’s estate nor DeLuna’s family could sue under a survival claim or wrongful death claim, respectively, because those responsible for DeLuna’s execution, i.e. the state, are protected under sovereign immunity.

While states’ sovereign immunity prevents remedying a wrongful execution since the proper defendant cannot be tried, Congress can take measures to abrogate this immunity.  Section 5 of the Fourteenth Amendment gives Congress the power to enforce the provisions of the Fourteenth Amendment.  The Fourteenth Amendment protects against any injustices done by the states to United States citizens by making the Bill of Right applicable to the states.  Thus, a
It is “violative of the Eighth Amendment to execute a person who is actually innocent. Executing an innocent person epitomizes the ‘purposeless and needless imposition of pain and suffering.” – Justice Blackmun, Dissenting Opinion, Herrera v. Collins
state’s violation of the Eighth Amendment would also violate the Fourteenth Amendment. Therefore, since the Supreme Court would likely rule that executing an innocent individual violates the Eighth Amendment, Congress may use its Section 5 powers to enforce and remedy the Eighth Amendment right to be free from cruel and unusual punishment. Abrogating state sovereign immunity in particular instances, like a wrongful execution, is one way Congress can utilize its Section 5 powers.

An abrogation statute directed towards wrongful executions must address multiple issues.  It must address the type of suit that could be brought against the state and how damages would be calculated.  Additionally, the statute should address the evidentiary requirements for imposing the death penalty in the first place and what affect those requirements should have on the amount of damages recoverable in the lawsuit.

The statute should permit the decedent’s estate to sue the state via a survival suit.  In doing so, the statute must take into account how a wrongful execution could even be established.  Proving innocence after death is by no means an easy feat, but it can be, and has been, done.  DNA evidence would likely be the key in establishing innocence posthumously; although, other forms of evidence, such as witness recantation, another’s confession, etc., could also be helpful.

The abrogation statute should:

  1. Provide for a survival suit
  2. Explain how to establish innocence posthumously
  3. Create an evidentiary requirement for when the suit can be brought
  4. Place a cap on recoverable damages
An abrogation statute should not result in a wrongful execution lawsuit for every person executed.  Therefore, the statute must place some limitations on when a decedent’s estate can sue for wrongful execution, such as a requirement to show that the evidence of innocence would most likely be strong enough to prove innocence beyond a reasonable doubt.  This would likely require some sort of pretrial to help determine the strength of the evidence in question.

An issue with holding states liable for any tort is that it can take a toll on state funds.  Therefore, the statute should place a cap on the amount of recoverable damages.  To help determine the cap, the statute should take into account the evidentiary material needed to sentence an individual to death in the first place.  The cap on recoverable damages could be reduced for states depending upon the type of evidence required by the state for a death penalty sentence.  For example, if state A requires DNA evidence for a death penalty sentence while in state B any form of evidence is sufficient so long as the state meets its burden of proof, then the damages cap for state A should be lower than the cap for state B because A is taking further precautions to reduce the likelihood of executing an innocent individual.  By imposing a damages cap with this feature, Congress would be taking steps to remedy a wrongful execution while also increasing the willingness of the states to take more precautionary measures when it comes to the death penalty in order to further protect against the possibility of a wrongful execution and potential liability.

Combining all of these components should result in a viable abrogation statute.  However, even if the statute is viable, there are multiple reasons why people may be wary about abrogating states’ sovereign immunity in the context of a wrongful execution.  Potential concerns include a tax raise to help pay damages; a hit in a state’s budget from paying damages; and a guilty person not receiving the death penalty due to stricter death penalty laws imposed by states in order to prevent potential liability.

While all of these concerns are reasonable, they can each be either countered or justified.  The death penalty is currently more expensive than life imprisonment.  A likely effect of the suggested abrogation statute would be that states would increase the evidentiary requirements for a death penalty sentence so as to reduce the possibility of innocents being executed and reduce potential state liability.  Therefore, the statute would actually save money since less people would be eligible for the death penalty.  This money saved could then be allocated to pay any potential damages a state may face.  It would also mean that a tax raise would not be necessary to fund liability damages, thus the taxpayers would not see any visible effect on their taxes due to the statute.

Finally, while a guilty person may not receive the death penalty because of higher evidentiary burdens, it does not mean that the guilty person is free to walk the streets.  Life imprisonment is still a potential sentence for the guilty.  Saving an innocent person from the possibility of execution is well worth the consequence of possibly having to sentence a guilty person to life without parole rather than execution.

Without an abrogation statute in the case of a wrongful execution by the state, the wrong done to individuals such as Carlos DeLuna will never be rectified.  While nothing can ever fully cure the pain caused by a wrongful execution, imposing liability upon the states is at least a step in
“The very essence of civil liberty consists in the right of every individual to claim the protection of the laws, whenever he receives an injury” – Marbury v. Madison
the right direction to ensure that the states’ wrongs are acknowledged and that the states do something to rectify this horrific wrong.

Banner image by _Yuki_K_. Licensed under Creative Commons – Attribution 2.0 Generic.

Nicole Megale graduated from Boston College in 2011 with a degree in political science and economics and a minor in mathematics. She is currently a 3L at St. John’s University School of Law and is the Executive Notes and Comments Editor of the Journal of Civil Rights and Economic Development. Her work experience includes legal internships with Martha Stewart Living Omnimedia, Napoli Bern Rikpa Shkolnik LLP, and Miller Montiel & Strano P.C.