The Criminology of Wrongful Conviction

Published date01 February 2017
Date01 February 2017
Subject MatterArticles
Journal of Contemporary Criminal Justice
2017, Vol. 33(1) 82 –106
© The Author(s) 2016
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DOI: 10.1177/1043986216673013
The Criminology of
Wrongful Conviction:
A Decade Later
Richard A. Leo1
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.
wrongful convictions, miscarriages of justice, criminology
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.
673013CCJXXX10.1177/1043986216673013Journal of Contemporary Criminal JusticeLeo
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)

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