Sustainability of innocence reform.

• Author: Zalman, Marvin
• Position: Miscarriages of Justice

1. INTRODUCTION

   Freeing one innocent prisoner, whose conviction masked the truth, seems an ultimate act of justice, as it rectifies a palpable wrong inflicted by the very system designed to guarantee true judgments. Yet one exoneration, however welcome, is inadequate to uphold a societal sense of justice in the face of growing knowledge that wrongful convictions are widespread. (1) The disquiet caused by knowing that many prisoners have been officially exonerated is compounded by studies estimating that wrongful convictions occur at significant rates, leading to thousands of miscarriages of justice every year. (2) Disquiet deepens when a wealth of scholarship shows that errors of justice are not inevitable results of human fallibility but are produced by systems that are correctible. (3) Disquiet turns to dismay when, realizing that innocence reforms that logically reduce the number of wrongful convictions also create a more accurate criminal justice system that will better convict the guilty, forces of inertia continue to obstruct such reforms. (4)

   Although legal scholarship tends typically to focus on doctrinal developments over time, (5) a lesson from the innocence movement's brief history is that the extensive problem of wrongful convictions cannot be satisfactorily addressed one case at a time or by the accretion of legal doctrine. What distinguishes the Innocence Project, (6) the Center on Wrongful Convictions, (7) the Innocence Network (8) and other contemporary innocence organizations from earlier exoneration-only innocence groups (9) is their realization that systemic policy reform is a necessary component of their work. (10) Within two decades, innocence advocates have advanced an impressive array of criminal justice system changes that are likely to reduce the number of wrongful convictions. The centrality of innocence reform is recognized by the innocence movement's leaders as indispensable to the goal of achieving justice. (11) A general policy approach includes not only the traditional province of lawyers (statutes, constitutional and common-law judicial decision-making, administrative law) but also the realms of politics, public policy, and agency behaviors that are analyzed with theoretical and empirical tools of the social sciences.

   Social and institutional changes do not just happen. Most institutions are resistant to structural reforms unless goaded by external forces, like competition that threatens the profits of a business enterprise or an enemy attack that threatens national security. In the world of criminal justice the investigation and prosecution functions have been insulated from structural change by the system's constitutional framework, the political power of police and prosecutorial agencies, and the general view that few wrongful convictions have occurred. It took a slow-moving catastrophe, catalyzed by the advent of DNA profiling, to change this deep complacency and to begin to move the large and unwieldy adjudication system toward innocence reforms. Although a few high-profile exonerations began to raise public awareness, it is the steady reporting of individual "disasters" from across the United States, year after year, month after month, day after day, that has created awareness of an innocence crisis. (12) In this article we examine the innocence movement from a broad policy approach in order to assess the prospect of effecting meaningful criminal justice reforms designed to reduce the incidence of wrongful convictions. We ask whether the level of innocence reform thus far achieved in the justice system can be sustained and expanded.

   Prognostications of social trends are risky and ought to be based on empirical evidence or special expertise. Given the multidisciplinary nature of wrongful conviction scholarship and the complexity of wrongful convictions, it would normally be foolhardy to make a broad assessment and forecast. What impelled us to assess future trends was our recent experience as co-editors of a volume authored by experts in various areas of wrongful conviction scholarship. (13) This article draws heavily on the knowledge and insights provided by the expertise of contributing authors, and others, who are on the cutting edge of many wrongful conviction subjects, to describe the prospects for legal and criminal justice reforms stimulated by concerns about miscarriages of justice. (14) Our project, however, is not simply descriptive; our goal is to articulate a policy process approach to understanding innocence reform that will complement the existing innocence paradigm that focuses on specific factors deemed to be the causes of wrongful convictions.

   Part II describes and explores the dominant conceptualization of wrongful conviction reform--the innocence paradigm--with its focus on a list of causes and cures, by reviewing advances in eyewitness identification reforms. We value the "causes and cures" paradigm, but also believe that it has limits. Part II anchors our effort to move toward alternative and complementary ways to think about wrongful conviction. (15) Part III discusses the centrality of political and public policy thinking and action, as well as concerns with public opinion and the news, to the arena of innocence reform. Part IV expands on our new model by paying explicit attention to innocence institutions, including the Innocence Network, exoneree-based organizations, prosecutors' conviction integrity units, North Carolina's unique Innocence Inquiry Commission, and even new ways to conceive of the judicial process. Part V discusses a number of research strategies that expand the repertoire of those used in the past in order to get a better handle on the direction and effectiveness of innocence reforms. Part VI explores ideas that have been advanced to deliberately sustain criminal justice and forensic science system change, drawing on quality-control and error-reduction strategies found in other industries. A promising suggestion is to replace the "bad apple" scapegoating reflex to wrongful convictions with an organizational accident concept that develops the ethic of learning from mistakes. Another proposal along these lines is for the peak institutions of forensic science to institute a continuous-learning subsystem to guide the different forensic science disciplines to paths of self-correction. Part VII asks whether a decline in the death penalty will lessen the intense desire that accompanies efforts to exonerate prisoners on death row, whether a potential decline in DNA exonerations will breed complacency, and whether the virtual impossibility of measuring large-scale decline of wrongful convictions will lessen the reformist zeal that animates the innocence movement. We conclude by reviewing the factors that militate against and for sustained innocence reform. Sustainability will ultimately depend on the degree to which the goals and approaches of innocence reform become internalized by the criminal justice system as indispensable to continuing professionalization. This leads us to conclude that innocence reform is not only about specific innocence reforms and innocence consciousness but is about the entire functioning of legal and criminal justice institutions.

2. THE INNOCENCE "CAUSES AND CURES" PARADIGM

   The American innocence movement has been shaped to a large degree by one book, Actual Innocence, (16) published in 2000, which established a conceptual framework--the innocence paradigm--which views wrongful convictions through the lens of a set of "causes and cures." (17) The innocence paradigm works well to organize the thinking of advocates and policy makers, as it draws on the deeply seated medical metaphor, suggesting that a pathology of some kind has caused an error and that each error must have a specific cure. The construct was inductively developed by lawyers and journalists who wrote up wrongful conviction case narratives and then conducted surface evaluations that enumerated negative factors (e.g., mistaken identification, false confession) that were obviously related to the miscarriage of justice. (18) The Innocence Project's website page that lists causes and remedies is exemplary of the innocence paradigm. (19)

   That innocence advocates have advanced an impressive array of innocence reforms under the innocence paradigm within only fifteen or twenty years makes innocence reform sustainability plausible. Most of the reforms concern the Innocence Project's seven priority issues: eyewitness identification, false confessions, DNA testing, evidence preservation, forensic oversight, innocence commissions, and exoneree compensation. (20) Other areas in which innocence reforms have been studied in depth and/or initiated include the death penalty; the use of jailhouse snitches and other confidential informants; the organization, funding, and practices of indigent defense; the response to prosecutorial misconduct and responsibility; and the role played--or not played--by governors and executive pardon authorities in correcting injustices. (21)

   Innocence reform scholarship focuses mainly on these issues. As an example, we briefly describe the research approach regarding policy responses to eyewitness misidentification. This may be the best studied and documented example for the good reason that eyewitness misidentification is first on almost every list of causes. (22) The depth of study begins with the fact that eyewitness identification and its interaction with legal proof has been the subject of psychological speculation and research for more than a century. (23) The Supreme Court weighed in on the subject in the 1960s in a valiant but failed effort to lessen error, (24) and the Justice Department has fostered study and training on the issue. (25) The last effort resulted in a published set of guidelines (NIJ Guides) that stood out as officially-sanctioned directives for police agencies to follow. These combined efforts...