The Criminology of Wrongful Conviction

• Published date: 01 February 2017
• DOI: 10.1177/1043986216673013
• Date: 01 February 2017
• Subject Matter: Articles

Journal of Contemporary Criminal Justice

2017, Vol. 33(1) 82 –106

© The Author(s) 2016

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DOI: 10.1177/1043986216673013

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Article

The Criminology of

Wrongful Conviction:

A Decade Later

Richard A. Leo1

Abstract

This article reflects on the author’s 2005 article, “Rethinking the Study of Miscarriages

of Justice,” which sought to describe what scholars empirically knew at that time about

the phenomenon, causes, and consequences of wrongful convictions in America. The

2005 article argued that the study of wrongful convictions constituted a coherent

academic field of study and set forth a vision for a more sophisticated, insightful, and

generalizable criminology of wrongful conviction. In this current article, the author

revisits the ideas first developed in “Rethinking the Study of Miscarriages of Justice”

to evaluate what scholars have learned about wrongful convictions in the last decade,

and what challenges lie ahead for developing a more robust criminology of wrongful

conviction. The article concludes that there have been significant theoretical,

methodological, and substantive advances in the last decade, but that a root cause

analysis of wrongful convictions has yet to come to fruition and urges empirical

scholars to begin to study other sources of error and inaccuracy in the criminal

justice system. Scholars should develop a criminology of erroneous outcomes, not

just of erroneous conviction. By studying both sets of outcomes, scholars can improve

accuracy and reduce errors across the board.

Keywords

wrongful convictions, miscarriages of justice, criminology

Introduction

In 2005, I published in this journal an article titled “Rethinking the Study of

Miscarriages of Justice: Developing a Criminology of Wrongful Conviction” (Leo,

2005). The erroneous conviction of the innocent in the American criminal justice

1University of San Francisco, San Francisco, CA, USA

Corresponding Author:

Richard A. Leo, University of San Francisco, 2130 Fulton Street, San Francisco, CA, 94117 , USA.

Email: rleo@usfca.edu

673013CCJXXX10.1177/1043986216673013Journal of Contemporary Criminal JusticeLeo

research-article2016

Leo 83

system is a deeply troubling and persistent legal and social problem that has long cried

out for better understanding and system-wide criminal justice policy reform (Leo &

Gould, 2009), and continues to show no sign of abating (National Registry of

Exonerations, 2016). Yet, historically, the problem of wrongful conviction has been

largely ignored or overlooked by criminologists and empirical criminal justice schol-

ars, especially prior to the development and use of forensic DNA testing in the crimi-

nal justice system. Before DNA, most criminologists and empirical legal scholars

seemed to be aware that wrongful convictions existed but generally believed they were

so rare as to be anomalous, if not freakish, in what was otherwise generally believed

to be a criminal justice system that, more or less, routinely produced reliable out-

comes. The DNA exonerations in the 1990s and early 2000s, however, “delivered a

shock to the system in the world of criminal justice” (Doyle, 2010, p. 145), shattering

the “myth of infallibility” that previously characterized most people’s beliefs about the

accuracy of convictions in the criminal justice system (Findley, 2010/2011) and giving

rise to what Marvin Zalman (2010/2011) has called “innocence consciousness.”

“Rethinking the Study of Miscarriages of Justice” first sought to describe what we

empirically know about the phenomenon, causes, and consequences of wrongful convic-

tions in America; then to argue that it constituted a coherent academic field of study,

describing its sub-parts as well as its strengths, weaknesses, and problems; and finally to

lay out for criminologists and other empirical social scientists a vision for future study,

challenging then current assumptions and approaches. Most fundamentally, my 2005 arti-

cle was an attempt to rethink the study of miscarriages of justice to systematically develop

a more sophisticated, insightful, and generalizable criminology of wrongful conviction.

The article has had a surprisingly good reception. It has been downloaded approxi-

mately 350 times on the Social Science Research Network (SSRN) and has been cited

dozens of times in scholarly articles and books, including repeatedly by many of the

leading empirical scholars of wrongful convictions. Zalman and his colleagues have

noted that it has strongly influenced innocence scholars and wrongful conviction

scholarship (Zalman & Larson, forthcoming). The methodology it proposed was the

basis for the National Institute of Justice’s call in 2008-2009 for more than US$600,000

in funding to study the causes of wrongful conviction with greater methodological

sophistication. Its call for root cause analysis of wrongful convictions predated the

National Institute of Justice’s Special Report (2014). The article has even been hailed

as a classic, leading to a session at the annual meeting of the American Society of

Criminology in 2015 that was titled, “Reflections on a Classic Ten Years Later: Richard

Leo’s ‘Rethinking the Study of Miscarriages of Justice.’” But perhaps most notably,

the article inspired an entire edited book by Brian Cutler (2012), Conviction of the

Innocent: Lessons From Psychological Research. Cutler (2012) writes as follows:

Leo’s (2005) article was the first that I had encountered that drew some of these research

under a larger umbrella . . . His article stimulated me to think about the commonalities

and parallels between research on the seemingly independent topics of mistaken

identification, false confessions and other causes . . . my first attempt to explore these

questions . . . led to a proposal for this book. (pp. 6-7)