Taking Stock of Innocence
| Author | James R. Acker |
| Published date | 01 February 2017 |
| Date | 01 February 2017 |
| DOI | http://doi.org/10.1177/1043986216673008 |
| Subject Matter | Articles |
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Article
Journal of Contemporary Criminal Justice
2017, Vol. 33(1) 8 –25
Taking Stock of Innocence:
© The Author(s) 2016
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DOI: 10.1177/1043986216673008
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Wrongful Convictions
James R. Acker
Abstract
This article offers a brief overview of the current state of the Innocence Movement.
It begins by reviewing what we know, and do not know, about the incidence of
wrongful convictions and their correlates and causes. It then explores select issues
that should receive greater attention to help sustain the Innocence Movement and
ensure its advancement. Acknowledging that much has been learned about wrongful
convictions and that important reforms have been enacted, the article concludes by
observing that significant challenges remain and must be addressed before efforts to
guard against convicting the innocent are relaxed.
Keywords
wrongful convictions, miscarriages of Justice, Innocence Movement
Introduction
Slow buds the pink dawn like a rose
From out night’s gray and cloudy sheath;
Softly and still it grows and grows,
Petal by petal, leaf by leaf. (Coolidge, 1886, p. 277)
It may be impossible to identify the precise time or specific event marking the dawn of
the Innocence Movement, a term loosely signifying the growing awareness that factually
innocent people have been and continue to be wrongfully convicted of crimes coupled
with a concerted effort to take preventive and corrective actions. It might have arrived as
Corresponding Author:
James R. Acker, University at Albany, Albany, NY 12222, USA.
Email: jacker@albany.edu
Acker
9
recently as the late 1980s and early 1990s when forensic DNA analyses began providing
hard scientific proof of wrongful convictions (Findley, 2011; Hughes, 2011). Perhaps it
was born decades earlier with the publication of Edwin Borchard’s (1932) Convicting the
Innocent, followed by a series of case studies featuring wrongfully convicted persons,
increased scholarly attention to the subject, and the advent of organizations devoted to
identifying and correcting miscarriages of justice (Leo, 2005). Most likely, the Innocence
Movement gradually took hold over time, as legal actors, activists, the scholarly
community, and the general public confronted mounting evidence of erroneous
convictions and the fallibility of systems of justice (Norris, 2017; Zalman, 2011).
Whenever and however the Innocence Movement began, it has undoubtedly spurred
much progress in generating important new knowledge and ushering in significant
criminal justice policy reforms. Still, as the Innocence Movement continues to evolve
and mature, it is equally clear that much more remains to be done to gain a fuller
understanding of the incidence and causes of wrongful convictions and to act to pre-
vent, identify, and correct these miscarriages of justice.
The Imperfect State of Our Knowledge
In the present context, a “wrongful conviction” signifies that a factually innocent
person has been found guilty of a crime. The term does not encompass convictions
tainted only by procedural error. The most straightforward cases arise when a crime
was committed but not by the person adjudged guilty (“wrong man” or “wrong
person” cases), or when a conviction was obtained even though a crime was never
committed (“no crime” cases, for example, an arson conviction in a case involving
a fire that actually had a natural origin rather than being deliberately set) (Acker &
Redlich, 2011, pp. 7-8). Other cases logically could be included—for example,
when an affirmative defense such as duress or self-defense erroneously is rejected,
or when a conviction is returned even though the defendant lacked the mens rea
required for the crime. The difficulty in untangling and reaching agreement about
such occurrences generally results in their being relegated to the periphery of dis-
cussions about wrongful convictions (see Bedau & Radelet, 1987; S. R. Gross,
2008; Zalman, 2012).
Owing to the formidable scope of “the dark figure of innocence” (Bedau & Radelet,
1987, p. 87; Garrett, 2011, p. 6), the information currently available about wrongful
convictions has variously been described as “a drop in the bucket” (National Registry
of Exonerations [NRE], 2016c, p. 2), “a tiny fraction” of the complete picture (Krajicek,
2015), and as the ever-popular “tip of the iceberg” (Findley & Scott, 2006, p. 291;
Garrett, 2011, p. 11). We know with certainty, however, that systems of justice are
prone to error. Documented cases of wrongful conviction are legion. They have
occurred during the colonial period (e.g., the Salem witch trials; Huff, Rattner, &
Sagarin, 1996) and early statehood (Center on Wrongful Convictions, 2016). They
have been chronicled in numerous more recent accounts (Harmon & Lofquist, 2005;
Leo, 2005; Leo & Gould, 2009).
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Journal of Contemporary Criminal Justice 33(1)
Survey respondents have speculated that anywhere between 0% and 20% of crimi-
nal convictions ensnare innocents, with criminal justice officials (police, prosecutors,
defense attorneys, and judges) generally offering estimates that range, on average,
between 0.5% and 3% (Ramsey & Frank, 2007; Smith, Zalman, & Kiger, 2011;
Zalman, Smith, & Kiger, 2008). Even those relatively conservative estimates corre-
spond to roughly 5,000 to 30,000 wrongful felony convictions and approximately
2,000 to 12,000 innocent people imprisoned annually (Zalman, 2012). They translate
into many more thousands of erroneous misdemeanor convictions and jail sentences
(Minton & Zeng, 2015; Natapoff, 2012; Roberts, 2013).
The two best sources offering insights about wrongful convictions in the United
States are the exoneration databases compiled by the Innocence Project (IP; 2016b)
and the NRE (2016b). These sources are also conspicuously imperfect because of the
sizable gap between exonerations and wrongful convictions. Exonerations typically
are defined as requiring the invalidation of a conviction coupled with official action
signifying the defendant’s actual innocence, such as the dismissal of charges, acquittal
on retrial, or a pardon (e.g., Dieter, 2004; S. R. Gross & Shaffer, 2012). Cases fitting
this definition do not correspond precisely to cases of wrongful conviction. One con-
cern is that evidentiary shortcomings, rather than actual innocence, might account for
an acquittal on retrial or the failure to re-prosecute a defendant whose conviction has
been reversed. The defendants in such cases may be factually guilty even though for-
mally exonerated (Cassell, 1999; Marquis, 2005; Schmidle, 2011). The much greater
risk is that exonerations are severely underinclusive of the universe of wrongful con-
victions, owing to the inability or failure of justice system officials to identify and
correct all cases in which innocent persons have been convicted of crimes (Bedau &
Radelet, 1987; Gould, 2014; S. R. Gross, 2013).
The IP was founded by Barry Scheck and Peter Neufeld in 1992 at Cardozo Law
School and now functions independently (IP, 2016a; Norris, 2017). The NRE began
operations two decades later, in 2012, originating through a collaboration between the
University of Michigan Law School and Northwestern University School of Law’s
Center on Wrongful Convictions (S. R. Gross & Shaffer, 2012). The cases collected
and made available by the two organizations overlap yet are importantly different. The
IP exclusively tracks exonerations resulting from postconviction DNA testing (IP,
2016a; West & Meterko, forthcoming), the first of which occurred in 1989 (IP, 2016d).
The NRE (2016d) “collects, analyzes and disseminates information about all known
exonerations of innocent defendants in the United States” from 1989 forward. It thus
includes DNA-based exonerations as well as others that do not depend on DNA
evidence.
Because the IP focuses only on DNA-related exonerations, the reported cases nec-
essarily involve crimes for which biological evidence was available and probative of
guilt or innocence. The IP database consequently represents a distinctive subset of
exonerations, which is dominated by sexual assault and homicide cases. In May 2016,
the IP identified 341 individuals exonerated through DNA testing, many of whom had
been convicted of more than one offense. A whopping 97.4% of the exonerees (332)
had been convicted of a sex offense or criminal homicide (IP, 2016b). In stark contrast,
Acker
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less than 4% of state felony convictions are for sexual assault or murder and nonneg-
ligent manslaughter (Rosenmerkel, Durose, & Farole, 2009, Table 1.2.1; see also S. R.
Gross & Shaffer, 2012).
That the IP list of exonerations is top heavy with cases involving sex offenses and
homicide can be confirmed by comparing it with the more inclusive NRE list. As of
mid-May 2016, the NRE had identified 1,783 exonerations, or more than 5 times the
number on the IP list. In common with the exonerees identified by the IP, many of the
individuals on the NRE list had been convicted of more than a single crime. Although
the greatest number of cases involved a conviction for murder or manslaughter (767)
or a sex offense (486), the NRE (2016b) exonerations relate to many additional crimes,
including the unlawful possession or sale of drugs (172), robbery (94), assault (63),
attempted murder (34), arson...
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