The Federal Role in the Innocence Movement in America

Date01 February 2017
Published date01 February 2017
DOI10.1177/1043986216673009
Subject MatterArticles
Journal of Contemporary Criminal Justice
2017, Vol. 33(1) 61 –81
© The Author(s) 2016
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DOI: 10.1177/1043986216673009
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Article
The Federal Role in the
Innocence Movement in
America
Keith A. Findley1
Abstract
Despite its small contribution to the ranks of the exonerated, and more broadly its
relatively small share of all criminal cases, the federal government has played a distinct
and important role in fostering and shaping the innocence movement. This article
recounts the various ways in which the federal government has done so: through
high-profile measures to recognize the reality of wrongful convictions, direct funding
of innocence work, use of federal purse strings to shape criminal justice policy, setting
an example through legislation on matters as diverse as access to postconviction DNA
testing and compensating the wrongly convicted, and leadership on issues such as the
problems with the forensic sciences. The article concludes that, moving forward, the
committed involvement of the federal government will remain important, especially
in tackling such challenging problems as flawed forensic sciences and ensuring financial
resources for innocence advocates.
Keywords
wrongful convictions, exoneration, innocence, criminal justice, DNA, federal
government
In terms of sheer numbers, criminal justice administration in the United States is pre-
dominantly a state, rather than federal, concern (Kurland, 1996). More than 97% of all
felony criminal cases are prosecuted in state and local courts under state laws (Klein
& Grobey, 2012). Of the country’s 2.3 million individuals in prison and jail, 2 million
are in state custody, and only 211,000 (less than 1%) are in federal custody (Wagner &
Rabuy, 2016). Of the nation’s probationers and parolees (or individuals on similar
1University of Wisconsin Law School, Madison, WI, USA
Corresponding Author:
Keith A. Findley, University of Wisconsin Law School, 975 Bascom Mall, Madison, WI 53706, USA.
Email: keith.findley@wisc.edu
673009CCJXXX10.1177/1043986216673009Journal of Contemporary Criminal JusticeFindley
research-article2016
62 Journal of Contemporary Criminal Justice 33(1)
community supervision), 97.3% are under state supervision, and 2.7% are under fed-
eral supervision (Glaze & Kaeble, 2014).
Despite its comparatively small numbers, however, the federal system has long
played an oversized role in setting criminal justice policy in America. In the 1960s
and early 1970s, the Supreme Court under Chief Justice Earl Warren embarked on a
criminal justice revolution that expanded constitutional rights of criminal defen-
dants, and thereby turned the federal constitution, largely as applied to the states
through the Fourteenth Amendment’s Due Process Cause, into a sort of de facto code
of criminal procedure. As never before, the federal constitution became the standard
for criminal procedure in state, as well as the federal courts. President Richard Nixon
responded in the early 1970s by pushing back with a “war on crime” that systemati-
cally ratcheted up criminal enforcement and penalties and, with the aid of the
Supreme Court under Earl Warren’s successor, Chief Justice Warren Burger, began
to scale back the procedural protections that the Warren Court had extended to crim-
inal defendants.1 In the early 1980s, the Reagan era “war on drugs” led the way
toward increased efforts to punish drug offenses, and a resulting explosion in the
prison populations (Krasnow, 1992, p. 220; Sentencing Project, 2015; Wagner &
Rabuy, 2016). Each step of the way, federal policy was reflected in state criminal
justice systems, in part because federal policy shaped public policy views and in part
because the federal government used its funding power to stimulate state policies
that conformed to federal priorities; the federal government, for example, has pro-
vided money, equipment, personnel, and power to local police to support federal
public safety priorities (Harmon, 2015).
In other fundamental ways, federal policy has continued to shape criminal justice
administration in the states. In 1984, Congress ushered in a revolution in American
sentencing policy when it enacted a major sentencing reform law (Sentencing Reform
Act, 1984; Rezneck,1985). That Act marked the demise of rehabilitation as a domi-
nant goal of sentencing, replacing the parole-based indeterminate system that had been
a hallmark of criminal justice in America for decades or longer with a rigid guidelines-
based determinate sentencing system. More recently, the federal government—perhaps
most visibly through the President’s Task Force (2015) on 21st-Century Pol icing—has
taken the lead in examining policing issues in an era in which simmering rifts between
local police and the communities they serve have exploded into the headlines.
Exonerations and the Federal Government
Although not as widely recognized, since the late 1990s, the federal government has
played a similar, even if smaller and quieter, role in fostering what has now become
known as the “innocence movement” (Findley, 2008). Marvin Zalman (2010-2011)
defines the innocence movement as
a related set of activities by lawyers, cognitive and social psychologists, other social
scientists, legal scholars, government personnel, journalists, documentarians, freelance
writers, and citizen-activists who, since the mid-1990s, have worked to free innocent

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