JURIST Guest Columnist Nicole Megale, St. John’s University School of Law Class of 2014, is the author of the fifth article in a 10-part series from the staffers of the Journal of Civil Rights and Economic Development. Megale calls for an abrogation statute to protect a wrongfully executed individual’s Eighth Amendment rights…

The Death Penalty Information Center (DPIC) lists [PDF] ten executions since the death penalty was reinstated in 1976 in which the evidence shows that those executed were actually innocent. In addition, 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, unfortunately, has likely occurred on at least ten occasions.

Considering that wrongful executions are a very real possibility, the following questions emerge. Does executing an innocent individual violate any law or the US Constitution? If so, can anything be done to remedy or prevent such a violation (other than abolishing the death penalty altogether, which would clearly end the possibility of a wrongful execution)? The answer to both of these questions is yes.

A wrongful execution likely violates the Eighth Amendment, which protects against cruel and unusual punishment. According to the concurring opinion in Herrera v. Collins, “executing the innocent is inconsistent with the Constitution” and would be a “constitutionally intolerable event.” The dissenting opinion in Herrera agrees, stating that 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.'”

Because the Supreme Court recognizes the probable unconstitutionality of executing an innocent individual, those wrongfully executed should have an available remedy to protect their Eighth Amendment rights. According to the court in Marbury v. Madison, “[t]he very essence of civil liberty consists in the right of every individual to claim the protection of the laws whenever he receives an injury.” If this statement from Marbury refers to all laws, as it should, then something must be done with regards to the Eighth Amendment and the execution of innocent persons. Despite the permanency of an execution and the cruelty of executing an innocent individual, there is currently no remedy for a wrongful execution because states are protected from litigation through the veil of sovereign immunity. Sovereign immunity prevents the state from being sued by a wrongfully executed person’s estate. This, unfortunately, makes a wrongfully executed person’s Eighth Amendment rights nonexistent.

To protect a wrongfully executed individual’s Eighth Amendment rights, Congress should utilize its Fourteenth Amendment, Section 5 powers and abrogate sovereign immunity in the case of a wrongful execution. By abrogating sovereign immunity, Congress would provide wrongfully executed individuals with a legal remedy for the harm caused to them.

The abrogation statute should have four components. First, the statute should permit the decedent’s estate to bring a survival action against the state. Second, it should lay out how innocence can be established posthumously. Third, it should create an evidentiary requirement for bringing a suit in the first place; this will prevent the courts from facing a wrongful execution lawsuit for every person executed. Finally, the statute should place a cap on the amount of recoverable damages.

The statute should reduce the cap on recoverable damages for states depending upon the type of evidence required by the state for a death penalty sentence. By reducing the cap for states with higher evidentiary requirements, Congress will increase states’ willingness to take more precautionary measures when it comes to the death penalty, to further protect against the possibility of a wrongful execution and potential liability and damages.

Combining these components should result in a viable abrogation statute. Additionally, taxpayers would not bear the burden of this statutory scheme, even though a state may have to pay damages. A likely effect of the suggested abrogation statute would be that states would increase the evidentiary requirements for a death penalty sentence, thus reducing both the possibility of innocents being executed and potential state liability. This would make less people eligible for the death penalty. Since the death penalty is more expensive than life imprisonment, the state would be saving money with less people on death row. Those saved funds could be allocated to pay any potential damages a state may face; therefore, no tax raise would be necessary.

Without an abrogation statute in the case of a wrongful execution by the state, the harm done to those innocents executed 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 right direction to ensure that the states’ wrongs are acknowledged and that the states do something to rectify this horrific wrong.

Nicole Megale 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. She graduated from Boston College in 2011 with a degree in political science and economics and a minor in mathematics. She

Suggested citation: Nicole Megale, Should States Be Held Liable for Executing an Innocent Individual? JURIST – Dateline, Oct. 16, 2013, http://jurist.org/dateline/2013/10/nicole-megale-prisoners-rights.php.