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The Supreme Court addressed the constitutionality of executing someone who claimed actual innocence in Herrera v. Collins (506 U.S. 390 (1993)). Although the Court left open the possibility that the Constitution bars the execution of someone who conclusively demonstrates that he or she is actually innocent, the Court noted that such cases would be very rare. The Court held that, in the absence of other constitutional violations, new evidence of innocence is no reason for federal courts to order a new trial. The Court also held that an innocent inmate could seek to prevent his execution through the clemency process, which, historically, has been "the 'fail safe' in our justice system." Herrera was not granted clemency, and was executed in 1993..



Since Herrera, concern regarding the possibility of executing the innocent has grown. Currently, more than 80 death row inmates have been released because of innocence since 1973. In November, 1998 Northwestern University held the first-ever National Conference on Wrongful Convictions and the Death Penalty, in Chicago, Illinois. The Conference, which drew nationwide attention, brought together 30 of these wrongfully convicted inmates who were exonerated and released from death row. Many of these cases were discovered not as the result of the justice system, but instead as the result of new scientific techniques, investigations by journalism students, and the work of volunteer attorneys. These resources are not available to the typical death row inmate.



Public Support



Support for the death penalty has fluctuated throughout the century. According to Gallup surveys, in 1936 61% of Americans favored the death penalty for persons convicted of murder. Support reached an all-time low of 42% in 1966. Throughout the 70s and 80s, the percentage of Americans in favor of the death penalty increased steadily, culminating in an 80% approval...