Rethinking the Study of Miscarriages of Justice:

• Author: Richard A. Leo
• DOI: 10.1177/1043986205277477
• Published date: 01 August 2005
• Date: 01 August 2005
• Subject Matter: Articles

10.1177/1043986205277477Journal of Contemporary Criminal Justice / August 2005Leo / STUDY OF WRONGFUL CONVICTION

Rethinking the Study of Miscarriages of Justice:

Developing a Criminology of Wrongful Conviction

Richard A. Leo

University of California, Irvine

This article providesa brief history of the study of miscarriages of justice in America. Itanalyzes

the field of wrongful convictionscholarship as three distinct genres: the big-picture studies, the

specialized-causes literature, and the true-crime genre. It also analyzes what these literatures

have contributed to knowledge about miscarriages as well as their limitations.This article

attempts to rethink the study of miscarriages of justice to systematically developa more sophisti-

cated, insightful, and generalizable criminology of wrongful conviction.

Keywords: miscarriage of justice; wrongful conviction; criminal justice error

The study of wrongful convictions has a long history in American schol-

arship. For more than eight decades, a number of writers—mostly law-

yers, journalists, and activists—have documented numerous convictions of

the innocent and described their causes and consequences (see, for example,

Borchard, 1932; Cohen, 2003; Gardiner, 1952; Radin, 1964; Scheck,

Neufeld, & Dwyer, 2000; Yant,1991). Yet only recently,after many years of

neglect, has a critical mass of criminologists and other social scientists

emerged to research and write about the problem of wrongful conviction

(see, for example, Westervelt& Humphrey, 2001). As a result, there is a sig-

nificantly larger and richer scholarly literature on the topic than ever before.

Not only is there more miscarriages scholarship, but there is more thoughtful

and deeper analysis of various aspects of the problem of wrongful conviction

(see, for example, Givelber, 1997; Gross, 1996; Westervelt & Humphrey,

2001). Although the writing on wrongful conviction still continues to be

dominated by lawyers, journalists, and activists, criminologists and other

social scientists are beginning to carve out a distinct research agenda (Forst,

2004; Westervelt & Humphrey, 2001).

201

Journal of Contemporary Criminal Justice, Vol. 21 No. 3, August 2005 201-223

DOI: 10.1177/1043986205277477

© 2005 Sage Publications

The newfound scholarly interest in the long known but understudied prob-

lem of wrongful conviction is undoubtedly related to recent technological

and political developments. With the advent of DNA technology and its

application to criminal cases, numerous individuals have been exoneratedin

the past decade and have walked out of prisons—sometimes directly off

death row—after many years of lengthy and unjust incarceration (Scheck

et al., 2000). In the past decade, there have been more newspaper stories,

magazine articles, and television documentaries on the plight of the wrong-

fully convicted than everbefore (Warden, 2003a). As a result, there is greater

recognition across the political spectrum that wrongful conviction of the

innocent is a real and ongoing social and legal problem. This has been partic-

ularly evident in the changing politics of the death penalty (Radelet, 2002;

Radelet, Bedau, & Putnam, 1992), so far culminating in former Illinois Gov-

ernor George Ryan’sdecision in January 2000 to declare a moratorium on the

death penalty because more convicted prisoners had been released from

death row as a result of factual innocence (13) than had been executed (12)

since Illinois reinstated the death penalty in 1973. The increasingly publi-

cized problem of wrongful conviction has also affected the public’s percep-

tion of and support for the death penalty (Armstrong & Mills, 2003).

Whereas not long ago, the claim that innocent people have been executed was

treated with general incredulity (Bedau & Radelet, 1987), a 2001 Harris Poll

found 94% of Americans believed that innocent defendants are sometimes

executed (Radelet, 2002, p. 67).

These are exciting times to be researching and writing about miscarriages

of justice. Despite the increasing academic and political attention given to the

problem, however,the criminological and sociolegal study of wrongful con-

viction is arguably still in its infancy. In this article, I will critically analyze

the miscarriages of justice scholarship to date, and I will make specific meth-

odological and theoretical suggestions about how criminologists and other

social scientists might systematically develop the study of wrongful convic-

tion into a more sophisticated and generalizable body of social scientific

knowledge. I will begin by describing and critiquing the historical develop-

ment of miscarriages scholarship and the three distinct genres that have

emerged within this body of knowledge. I will then suggest specific strate-

gies for developing a more empirically diverse, methodologically sophisti-

cated, and theoretically oriented criminology of wrongful conviction. The

goal of this article is to rethink current assumptions and approaches to deepen

our understanding of the phenomenon, causes, and consequences of miscar-

riages of justice in America.

202 Journal of Contemporary Criminal Justice / August 2005