An integrated justice model of wrongful convictions.

• Author: Zalman, Marvin

1. THE INNOCENCE MOVEMENT II. TO THE INNOCENCE PARADIGM A. Before Innocence B. Innocence Comes of Age 1. Beginnings: The 1980s 2. Convergence: The 1990s 3. The Age of Innocence: The 2000s C. The Innocence Paradigm III. AN INTEGRATED JUSTICE MODEL OF WRONGFUL CONVICTIONS IV. CONCLUSION FIGURES Figure 1. Integrated Justice Model: Domains and Their Ideals Figure 2. Integrated Justice Model: Domain Institutions Figure 3. Integrated Justice Model: Domain Theories, Concepts, and Ideologies Figure 4. Integrated Justice Model: Core Domain Activities Figure 5. Integrated Justice Model: Innocence-Related Activities and Concerns INTRODUCTION

   There is a lot of noise about miscarriages. We attempt to understand what this noise is all about. (1) The inauguration by the Albany Law Review of an annual symposium issue dedicated to the subject of miscarriages of justice, which are criminal justice system errors, both recognizes and constructs the reality that a distinct subject area has emerged. (2) However this area is denominated--"wrongful convictions" or "innocence studies"--it not only fits within legal scholarship and teaching, but is an inherently interdisciplinary subject. That this inaugural issue is a joint project of the Albany Law School and the School of Criminal Justice at the State University of New York at Albany is conceptually important and personally significant. (3) As a lawyer and a graduate of the School of Criminal Justice, I will offer an interdisciplinary model of the innocence movement--the Integrated Justice Model ("IJM")--which complements, rather than supplants, the innocence paradigm that emerged from and has shaped the innocence movement. The IJM views wrongful convictions from a public policy perspective. (4) It offers a more complete picture of the policy environment of justice reforms, keyed to the specific concerns of the innocence movement, in the hope that such understanding will allow for better planning of justice system reform.

   Part I provides a brief overview of the innocence movement and the related issues of defining a wrongful conviction and estimating the size of the problem. Parts II A and B present a historical sketch of the innocence movement's development in the United States from a social constructivist perspective. Many law review articles describe the rise of the innocence movement in a flattened way before getting on to the meat of their studies. A simplified standard version of this history is that DNA happened, innocent prisoners were exonerated, and innocence projects sprung up. These accounts, in their brevity, downplay the role of human agency. The account herein explores the actions and inferred motives of key innocence movement actors. Their actions and writings created an intersubjective understanding of the innocence paradigm that shaped the movement. This perspective illuminates the agenda-setting and policy-driven nature of the movement. (5)

   Most accounts take the innocence paradigm for granted. I argue in Part II that the innocence paradigm was fashioned so as to bring together disparate elements of an innocence puzzle, viewed as causes of wrongful convictions, into a synergistic whole. As a human, intellectual construct, the innocence paradigm created a unified foundation and strategy for viewing wrongful convictions as an area for policy reform. This paradigm provided an intellectual framework for the innocence movement's policy agenda. The contours of the innocence paradigm are sketched in Part II C. Part III presents the IJM, which examines the policy landscape of the innocence movement. It draws a picture of the innocence movement's domains, and their ideals, institutions, actors, operating constructs, and problem areas. It is a heuristic device intended to make explicit the innocence movement's policy context. The IJM does not seek to supplant the innocence paradigm, which continues to serve a useful function.

1. THE INNOCENCE MOVEMENT

   The innocence movement refers to a related set of activities by lawyers, cognitive and social psychologists, other social scientists, legal scholars, government personnel, journalists, documentarians, freelance writers, and citizen-activists who, since the mid-1990s, have worked to free innocent prisoners and rectify perceived causes of miscarriages of justice in the United States. Concerns about innocence are seen in other nations, but the timing and flavor of innocence-related programs, policies, and ideas differ in different places. (6) The movement is characterized by innocence consciousness--the idea that innocent people are convicted in sufficiently large numbers as a result of systemic justice system problems to require efforts to exonerate them, and to advance structural reforms to reduce such errors in the first place. (7) Innocence consciousness replaces a belief that the justice system almost never convicts an innocent person. (8) When translated into public opinion, innocence consciousness becomes one of the forces generating policy change. (9)

   The innocence movement has several goals. The first is to rescue falsely convicted men and women from prisons and death rows. (10) Pedagogy is a related function because the primary innocence movement institutions are law school-based innocence projects, where law students provide much of the labor necessary to carefully review cases. (11) A third function, which was not contemplated by the first innocence project's founders, is to provide assistance and lobby for compensation for exonerees. (12) The last function, which was contemplated by innocence movement protagonists from a very early stage, is to promote innocence-related policy reforms. (13) These reforms are shaped by the innocence paradigm, which is the organizing heuristic for the innocence movement. The paradigm consists of a list of wrongful conviction "causes," along with policies to assist exonerees. (14) Absent from the paradigm, from a criminal justice perspective, are analyses and policy initiatives addressed to the plight of innocents while in prison. (15) Although the innocence paradigm has been, and continues to be, a helpful way to think about wrongful convictions, the growing complexity of the innocence movement's policy agenda requires a complementary way to view the process, which is presented in the Integrated Justice Model ("IJM") herein. (16)

   Two basic issues that engender confusion and controversy are how to define a wrongful conviction and the size of the problem. Several scholars, myself included, have written at length on these issues, so I will be brief. As for the definition, the innocence movement focuses on wrongful convictions in the factual sense, where the wrong person is convicted of a crime, or is convicted of a crime that did not occur. (17) The term "wrongful conviction" also includes convictions marred by serious constitutional or other procedural or due process errors, which are foundations of our civilized legal system and are not "legal technicalities." (18) While much can be written about the relation between procedural justice and false convictions, the focus of the innocence movement is on actual or factual innocence. (19) An intermediate issue that has not been entirely resolved is whether to include the convictions of defendants who have committed the act of a crime, but whose justification was not accepted by a jury. The most difficult cases of this kind involve rejected claims of self-defense. Forensic science evidence can be marshaled to support claims of innocence in self-defense cases. (20) But generally, there is no easy way to detect a factually wrongful conviction. An objective standard for "exonerations" is applied in capital cases by the Death Penalty Information Center, even though this means that a few defendants who were factually involved in the crime, and probably wrongly acquitted, are included. (21) An exoneration "is an official act declaring a defendant not guilty of a crime for which he or she had previously been convicted." (22) According to Exonerations in the United States, 1989 Through 2003, there are four sources of exonerations: pardons or similar executive actions that free prisoners based on innocence grounds; dismissals of convictions by courts "after new evidence of innocence emerged"; acquittals in retrials granted by appellate courts "on the basis of evidence that [defendants] had no role in the crimes for which they were originally convicted"; and posthumous acknowledgments by the state that prisoners who died in prison were factually innocent. (23) It is worth noting that this definition of exoneration, applied by Exonerations in the United States, 1989 Through 2003, relies on a mixed objective-subjective definition so as to include only factually innocent defendants, which was appropriate for the goals of that that study, which identified three hundred and forty such exonerees in the years between 1989 and 2003. (24) Yet, the term exoneration generally applies to all defendants who are acquitted at trial. It is therefore important for studies dealing with wrongful conviction and exoneration to define the terms, and to explain how the innocence statuses of the subjects are determined.

   Even more controversy surrounds the question of the number of wrongful convictions. Is the problem large enough to engender serious reform efforts? Most innocence advocates assume the problem is large, but do not specify its size. One reason why a precise figure cannot be given is that, aside from DNA exclusions, there is no exacting test for defining a wrongful conviction short of painstaking case reconstruction. Also, no government agency or private organization maintains a comprehensive census of wrongful convictions. (25) Therefore, "[w]ithout investigation of every conviction there is no way to know what proportion of those presently imprisoned are factually innocent." (26) On this basis, a few critics have argued that wrongful convictions...