Document Type


Publication Date



Habeas corpus, Death penalty, Capital punishment, Sawyer v. Whitley, Death-innocence, Furman v. Georgia, Woodson v. North Carolina, Lockett v. Ohio, Capital jurisprudence, Death-eligibility, Capital sentencing


Criminal Law | Criminal Procedure


The legal space between a sentence of death and the execution chamber is occupied by an intricate network of procedural rules. On average, it currently takes between six and seven years to traverse this space, but this interval is expected to shrink. Federal habeas corpus, an important part of this space, is studded more and more with procedural obstacles that bar the federal courts from entertaining the merits of a defendant's claims. By design, these barriers foreclose federal review in order to protect the state's interests in the finality of its criminal convictions, as well as to display healthy respect for and confidence in the ability of state courts to safeguard federal constitutional rights. Though increasingly formidable, these obstacles are not absolute. They will sometimes give way. As a last resort, the obstacles will yield before a defendant who is arguably innocent. A defendant who arrives at the doors of the federal courts with a "'colorable showing of factual innocence’” is supposed to gain entry.

The concept of innocence is relatively straightforward and well-defined when the defendant claims he is innocent of the crime itself: either the defendant did it or not. Unlike a non-capital defendant, however, a capital defendant can assert another sense of innocence: innocence of the death penalty. What does it mean to say a defendant is innocent of the death penalty? More particularly, what does or should the law understand it to mean? This essay explores the idea of "death-innocence," trying to formulate the best conception of what it means to say that a capital defendant is "actually innocent" of the death penalty.

Publication Citation

Published in: Albany Law Review, vol. 56, no. 2 (1992).