Herrera v. Collins, 506 U.S. 390, 46 (1993)

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Cite as: 506 U. S. 390 (1993)

Blackmun, J., dissenting

was probably a reasonable doubt about his guilt but that he is probably actually innocent. I find it difficult to believe that any State would choose to retry a person who meets this standard.

I believe it contrary to any standard of decency to execute someone who is actually innocent. Because the Eighth Amendment applies to questions of guilt or innocence, Beck v. Alabama, 447 U. S., at 638, and to persons upon whom a valid sentence of death has been imposed, Johnson v. Mississippi, 486 U. S., at 590, I also believe that petitioner may raise an Eighth Amendment challenge to his punishment on the ground that he is actually innocent.

B

Execution of the innocent is equally offensive to the Due Process Clause of the Fourteenth Amendment. The majority's discussion misinterprets petitioner's Fourteenth Amendment claim as raising a procedural, rather than a substantive, due process challenge.5

"The Due Process Clause of the Fifth Amendment provides that 'No person shall . . . be deprived of life, liberty, or property, without due process of law . . . .' This Court has held that the Due Process Clause protects individuals against two types of government action. So-called 'substantive due process' prevents the

5 The majority's explanation for its failure to address petitioner's substantive due process argument is fatuous. The majority would deny petitioner the opportunity to bring a substantive due process claim of actual innocence because a jury has previously found that he is not actually innocent. See ante, at 407, n. 6. To borrow a phrase, this "puts the cart before the horse." Ibid.

Even under the procedural due process framework of Medina v. California, 505 U. S. 437 (1992), the majority's analysis is incomplete, for it fails to consider "whether the rule transgresses any recognized principle of 'fundamental fairness' in operation." Id., at 448, quoting Dowling v. United States, 493 U. S. 342, 352 (1990).

435

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