The Innocence Commission: Preventing Wrongful Convictions and Restoring the Criminal Justice System.

• Author: Bowman, Locke E.
• Position: Book review

JON B. GOULD, THE INNOCENCE COMMISSION: PREVENTING WRONGFUL CONVICTIONS AND RESTORING THE CRIMINAL JUSTICE SYSTEM (N.Y.U. Press 2007). 345 PP.

The Commonwealth of Virginia, like many other jurisdictions across the country, witnessed, during the 1990s and the current decade, a series of exonerations of persons who had been convicted and sent to prison (some to Death Row) for crimes they did not commit. Jon Gould's heartfelt and thoughtfully reasoned volume chronicles the efforts of a small group of volunteers, Gould among them, to change some of Virginia's criminal justice practices in the wake of these miscarriages of justice.

The conviction and subsequent exoneration of the innocent has assuredly been the most dramatic--perhaps the most important--recurring criminal justice story of the last two decades. Through repetition, the pattern is now familiar: before or shortly following 1989 (the year of the nation's first DNA exoneration); a suspect--often brown or black, almost invariably indigent, is convicted of a rape or murder; the state's evidence is facially compelling: a confession to the police, the testimony of a jail house snitch, an eyewitness's confident identification, possibly forensic evidence that appears to link the defendant to the crime scene; but years later, after the advent of DNA forensic technology, biological evidence establishes that someone other than the defendant committed the crime. As of this writing, this scenario has unfolded 218 times in the United States. (1)

In tandem with DNA exonerations, and probably to some extent because of them, this same time period has also witnessed the exoneration of hundreds of additional prisoners as a result of witness recantations, the exposure of investigatory misconduct, and the like. (2) There is every reason to presume that the documented wrongful convictions are but a fraction of the true number of cases in which an innocent person was sent to prison for a crime he did not commit. (3)

The consequences of wrongful conviction are profound. An unspeakable tragedy is visited upon those who are falsely convicted, some of whom endure decades of harsh, unjust imprisonment before their exonerations. (4) With news of exonerations, victims and their family members are forced to relive the crime and its aftermath, years after they had every reason to believe the guilty party had been safely locked away. In some cases, with police, prosecutors, and the courts focused on the wrong person, the guilty perpetrator has remained free and has committed subsequent serious crimes that might have been prevented. (5)

The costs are enormous and impossible to quantify. Immeasurable suffering is caused to the wrongfully convicted as a result of shattered personal and community ties, the loss of freedom (sometimes for decades), harsh conditions of imprisonment, and ruined psyches. (6) There is also a broader effect, as confidence in the criminal justice system is shaken. Police-community relations may be further undermined in communities where such relationships have historically been strained. In extreme cases, the legitimacy of the entire criminal justice process may be called into question.

There is also high drama and human interest in the exoneration of an innocent person, who may have spent many years in prison. Even after scores of repetitions, the image of an innocent person walking through the prison gates still has great salience for the media and the public. This is now the stuff of movies, novels, and best selling non-fiction accounts. (7)

Gould's book discusses how reformers might capitalize on the so-called "innocence issue" to advance criminal justice reforms designed to safeguard against conviction of the innocent. In a few more years there will be very few cases in which old evidence can be re-examined using new DNA analysis. The era of wholesale DNA exonerations is drawing to a close. If the public attention focused on wrongful convictions can catalyze criminal justice reform, then the window of opportunity afforded by this phenomenon is narrowing. For that reason alone, Gould's book is timely and important.

Reforming law enforcement practices is not easy. The State of Illinois is unquestionably the gold standard for positive accomplishment in this regard, but the successes there came about as a result of an unlikely combination of factors. (8) In Illinois, reform of the criminal justice system was linked to the death penalty abolition movement. Capital punishment opponents used exonerations of the innocent from the state's Death Row to call for an end to the Illinois death penalty. They claimed that the capital punishment system was "broken," pointing to the fact that between 1977 and 2000 Illinois exonerated more men from its Death Row (thirteen) than it executed (twelve). (9) Public concern was heightened with the exoneration of Anthony Porter, who, in 1999, came within forty-eight hours of execution, was given a stay of execution because of concern about his competency to stand trial, and, with the stay in place, was exonerated through the efforts of a team of Northwestern journalism students who were reinvestigating his case as a class project. (10) Then, three additional death row exonerations--Steven Smith, Ronald Jones, and Steve Manning--followed in quick succession during the course of 1999.

In response, former Illinois Governor George Ryan in January 2000 declared a moratorium on executions and appointed a Commission on Capital Punishment to study the causes of wrongful convictions and recommend reforms. (11) The Governor's moratorium and call for study of criminal justice reforms was a middle ground, falling short of total abolition of the death penalty, which had been (and remained) the principal reform goal of many of those whose public advocacy had brought the wrongful conviction issue to the top of the political agenda.

Over two years later, after exhaustive research, the Ryan Commission issued a comprehensive report proposing eighty-five specific reforms. Some of the Ryan Commission's key proposals were enacted by the Illinois legislature. As Gould recounts, (12) Illinois now requires, for example, the video recording of custodial interrogations in all homicide investigations, (13) reliability hearings prior to the admission of "snitch" testimony against a defendant, (14) and competency certification for all counsel who defend capital cases. (15) Most famously, the report also led Governor Ryan in January 2003 to commute the death sentences of every prisoner on the Illinois Death ROW. (16)

Following several of its own miscarriages of justice, North Carolina, acting more modestly than Illinois, established the North Carolina Actual Innocence Commission at the urging of the state's chief justice. (17) The Commission examines the correlates of wrongful convictions and issues recommendations for the improvement of criminal justices practices. By the Commission's account, its recommended protocols for line-ups and other eyewitness identification procedures are "increasingly" being implemented by law enforcement agencies. (18) In 2006, North Carolina also created an Innocence Inquiry Commission with limited authority to review and recommend judicial reconsideration of cases with "suspected miscarriages of justice." (19)

In the wake of the widely reported DNA exoneration of Steven Avery in Wisconsin in 2003, that state enacted legislation to require electronic recording of custodial interrogations, to require implementation of law enforcement agency procedures for handling eyewitness identifications, and to require new procedures for retaining biological evidence. (20) In 2004, following a several-year campaign by Senator Patrick Leahy and activists at the Washington, D.C.-based Justice Project, the federal government enacted the Innocence Protection Act, (21) which permits a federally convicted person to apply for post-conviction DNA testing under specified circumstances.

These are impressive successes. But, given the enormous personal toll for those directly affected by wrongful conviction, the practical costs to the entire criminal justice system of such miscarriages, and the moral implications for society at large, it is more noteworthy how little reform has actually occurred and how incomplete the reforms have been, even in Illinois, which failed to implement a number of the Ryan Commission's proposals. (22) Gould, a veteran of multiple national political campaigns, lays out the problem in the language of political science: criminal justice practices are deeply entrenched and the system is highly resistant to change; wrongful convictions furnish an opportunity for reform, but not one that is self-executing; change can only come about through the efforts of "resourceful policy advocates," but those advocates face powerful opposition from those who are committed to the status quo. (23)

As Gould acknowledges, Virginia's criminal justice system has historically been a backwater. It woefully underpays defense counsel appointed to represent the indigent, with fee caps that are at or near the lowest in the nation. (24) Until recently, Virginia infamously enforced a strict "21 day rule," which barred a defendant from attacking his conviction on the basis of new evidence of actual innocence when more than twenty-one days had expired following the conviction. (25) The Commonwealth has a sordid history of racial misconduct, including in its criminal justice system, which featured slave codes and a variety of other overtly racist provisions and practices. (26) Virginia remains deeply committed to the use of capital punishment, having executed 102 people since 1976, more than any other state except Texas. (27)

Not surprisingly, Virginia has produced its fair share of wrongful...