Is Punishing Innocent People Unconstitutional?

The possible Supreme Court case of a man imprisoned for a murder he didn’t commit deserves to be heard.

Last December, Christopher Dunn asked the United States Supreme Court to order his release from prison or at least grant him a new trial. He is serving a life sentence in Missouri for a crime he did not commit, and he is hoping the court will agree to take up his case this spring. Dunn contends that the U.S. Constitution forbids punishing innocent people and is asking the justices to declare that it is unconstitutional for a state to keep an innocent man in prison. A court in Missouri now agrees that he is not guilty. But Dunn is caught up in a nightmarish legal thicket. It is time for the Supreme Court to end his nightmare and say that this country will not tolerate punishing the innocent.

Dunn was convicted and sentenced to life in prison plus 90 years for the 1990 slaying of Recco Rogers, a teenager who was shot while visiting a friend in the Wells-Goodfellow neighborhood of St. Louis. According to a report in the New Republic, “The sound of gunfire was common in Wells-Goodfellow. Hearing the shots that killed Rogers, some neighbors did not bother even to look outside.”

At the time that Rogers was killed, Dunn was 18 years old. He was at home talking with a friend on the phone while his family was in another room watching television. As the New Republic notes, Dunn had recently completed “a brief prison sentence for cocaine possession and receiving stolen property” and previously had served time in juvenile detention on other charges. As a result, he was well known by the police who patrolled in the Wells-Goodfellow neighborhood.

Dunn was arrested after two boys—DeMorris Stepp, who was 14 years old, and Michael Davis, who was 12—told police that they had been hanging out with Rogers when they saw someone firing a gun from an adjacent yard. They both said that it was Dunn. They agreed to testify against him after the prosecution offered them a deal.

Such inducements are common in the prosecution of serious criminal cases. Dunn’s is one of countless instances in which someone involved in a crime gets off with a lighter sentence after pinning the blame on someone else. And, as is often the case for poor people in this country, Dunn did not get very good legal representation. His overworked public defender spent only 15 minutes with him prior to trial and did not want to invest much time on his case. It did not seem to matter that, right from the start, Dunn had insisted that he was innocent and had witnesses who would support his alibi.

Dunn’s lawyer interviewed only two potential witnesses and told Dunn that she couldn’t find other people on his list of witnesses. She urged him to plead guilty to second-degree murder. Dunn refused. His trial was over in only half a day. The prosecution offered no motive for the crime and presented no physical evidence linking Dunn to Rogers’ death. His case rested almost entirely on the testimony of Stepp and Davis. It took less than an hour for the jury to return a guilty verdict. But Dunn’s case was more than the story of yet another young Black person caught up in a cycle of crime and violence.

In 2005 things began to unravel when Stepp admitted he had perjured himself in testimony against Dunn. He said he had been pressured by police and prosecutors to say that Dunn was the killer. In 2015 Davis also recanted his testimony and said that he actually could not see the person who shot Rogers.

Sometime later another man who had witnessed the shooting of Rogers said that it was too dark for anyone to see who killed him. In 2020, Missouri Circuit Court Judge William Hickle reviewed the Dunn case and concluded that Dunn was “actually innocent.” As he put it, based on the new evidence, he did not believe that “any jury would now convict Christopher Dunn” since “any reasonable juror would have reasonable doubt.”* So why hasn’t he been set free?

Under a bizarre interpretation of Missouri law, only people who are sentenced to death can bring actual innocence claims in the state’s courts. As a Missouri Court of Appeals said in 2016, “Because the Missouri Supreme Court has not yet recognized a freestanding claim of actual innocence in cases where the death penalty has not been imposed,” or based even in death penalty cases on principles of due process, “we are not at liberty to expand Missouri habeas jurisprudence to permit consideration of the claim in this non-death penalty case.”

In a cruel twist of fate, this means that Dunn would be free today, if only he had been sentenced to death. And here is where the U.S. Supreme Court comes in. Thirty years ago in a case called Herrera v. Collins, a 6–3 majority concluded that evidence of actual innocence was “not relevant” in a petition for a writ of habeas corpus “absent some constitutional violation.” As Chief Justice William Rehnquist put it, “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person. … To conclude otherwise would all but paralyze our system for enforcement of the criminal law.” And, after reviewing the history of the Constitution’s due process clause, Rehnquist concluded that a claim of “ ‘actual innocence’ is not itself a constitutional claim.”

Since Herrera was decided, courts all over the country seemed to reaffirm Herrera and again ruled that appellate courts do not have to consider actual innocence claims. But a lot has happened that should now lead the Supreme Court to revisit Herrera, including, most importantly, the mountain of evidence that numerous people have been, and are being, convicted and sentenced for crimes they did not commit.

In 2009, Justice John Paul Stevens recognized those facts and used a concurrence in another actual innocence case to observe that any statute that “bars relief for a death row inmate who has established his innocence” is “arguably unconstitutional.” He argued that “decisions of this Court clearly support the proposition that it would be an atrocious violation of our Constitution and the principles upon which it is based to execute an innocent person.”

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Stevens asked the court to “imagine a petitioner … who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man.” He criticized Herrera’s reasoning, saying it “would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning.”

The Dunn case offers the court a chance to apply that simple and straightforward conclusion to all punishments, including life in prison and the death penalty.

Whatever the Supreme Court decides, it is time for Missouri to own up to its mistake. The St. Louis County district attorney should initiate the kind of process that, in 2021, led to the release of Kevin Strickland, 43 years after he was sent to prison for a murder he did not commit.

Whether by a Supreme Court decision or a procedure in Missouri, Christopher Dunn deserves to be a free man. As Judge Learned Hand noted 100 years ago, “Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream.” But that dream has been all too real for Dunn and others like him. Every American has a stake in burying the ghost that Learned Hand references once and for all.

Update, April 12, 2023: This article has been updated to clarify Hickle’s conclusion in the case.