Moving down the wedge of injustice: a proposal for a third generation of wrongful convictions scholarship and advocacy.

• Author: Siegel, Andrew M.

The Innocence Project and its allies in the wrongful convictions movement (1) have much to be proud of. In a first wave of activity, they have freed more than 150 innocent people from prison, (2) focused public attention on the prevalence of wrongful convictions, and achieved substantial reforms in our mechanisms for reviewing and reversing convictions that cannot stand up to modern scientific analysis. (3) In addition, this wave of exonerations has inspired an informed skepticism about the fact-finding ability of the criminal justice system that has in turn invigorated opposition to punitive post-conviction procedures, draconian sentencing, and even the death penalty. (4)

More recently, the innocence movement has opened a second front in the battle against wrongful convictions, marshaling information culled from the many known exonerations to identify and publicize the factors that lead to flawed evidence and faulty convictions. (5) In this larger project, lawyers and activists have been joined by a growing cadre of academics dedicated to exploring the legal and scientific issues relating to the reliability of eyewitness testimony, juvenile confessions, and modern forensic methodologies, to list just a few examples. (6) Over the last several years, this second generation of wrongful convictions scholarship and advocacy has won some significant victories, achieving substantial, albeit piecemeal, changes in the ways police departments conduct investigations and the manner in which courts evaluate certain types of evidence. (7)

While these litigation, public relations, and scholarly achievements have been notable, the innocence movement has not been without its critics. Prosecutors and law enforcement officials have shown substantial resistance to both the picture of the criminal justice system painted by the innocence movement and to many of the reforms the innocence movement has proposed. Critics have argued, with some support from the data, that wrongful convictions are, statistically speaking, few and far between and that the financial, institutional, and social costs of reforming our criminal justice system to respond to those few cases far outweigh the benefits. (8) Some members of the criminal defense community have offered similar critiques, arguing that a myopic focus on the few factually innocent criminal defendants distracts attention from the broader project of assuring fair trials for all criminal defendants and appropriate sentences for those convicted. (9) Finally, commentators and policymakers have suggested that innocence-tinged attacks on capital punishment, post-conviction procedures, and traditional methods of evidence gathering are little more than smokescreens meant to distract legislators and the public from the substance of otherwise unpopular "soft on crime" proposals. (10)

In addition, the very success of the innocence movement dampens the horizon for further achievements. While there likely remains a substantial universe of wrongfully convicted individuals desperate for the help of qualified and persistent representation, the second-order law reform consequences of each exoneration are beginning to decline as the public becomes inured to the once-shocking fact that our prisons are filled with a substantial number of factually innocent convictees. Moreover, as the substantial backlog of defendants who might benefit from DNA testing of evidence in their cases dissipates through a combination of testing and waiver, the consequences of the innocence movement's greatest legislative achievement, partial as it may be, is slowly becoming an item for the history books. (11)

While the second generation evidence-related law reform activities of the wrongful convictions movement rightfully continue to occupy its members, the scholarly work on false confessions, faulty eyewitness identifications, and other predictable problems of proof is largely complete. (12) As a result, the academic allies of the wrongful convictions movement are, to some extent, adrift without an agenda. This Essay proposes to fill that gap and to provide activists and litigators with a crucial and potentially popular new front. As I will argue in the coming pages, wrongful convictions scholars should shift their focus from post-conviction strategies and evidence-related flaws in our system of criminal justice to broader questions about the structure and administration of the justice system, both because of the intrinsic importance of the knowledge they will create and in preparation for future litigation and law reform campaigns. (13)

The agenda I propose--the exploration of broad questions about the structure and administration of our criminal justice system--is hopelessly broad when described in the abstract. (14) The main task of this Essay is, therefore, to demonstrate what I mean through vivid examples. In Part I, I begin with some illustrations of the kinds of issues I intend to include in this scholarly call to arms and then make the case for my proposed agenda in light of both theoretical and practical considerations. In Part II, I offer an example of the kind of deep structural feature that operates--outside the ken of legal, let alone public observers--to warp the administration of criminal justice and produce wrongful convictions. The specific example I use is South Carolina's now-unique system in which elected prosecutors have complete and exclusive control over when and in front of what judges cases are called to trial or for pleas. (15)

The Innocence Project and the larger wrongful convictions movement have had great success focusing on the spectacular: factually innocent clients freed after DNA exclusions, (16) junk science exposed, (17) and individuals sent to death row through dubious eyewitness identifications. (18) While these kinds of extraordinary vignettes will no doubt remain a calling card of the innocence movement, they ought not obscure the simple fact that most of the erroneous or unjust results that emerge from our criminal justice system are the consequence not of extraordinary events, but of the ordinary operation of a flawed system. If we can identify and then target for change the irrationalities and biases built into our systems of docket management, plea bargaining, or jury instructions, we will do much to reduce wrongful convictions while simultaneously increasing the quality of justice received by all regardless of guilt or innocence. (19)

1. THE WEDGE OF INJUSTICE

   Like an unhappy family, every wrongful conviction is unique. Breaking down the factors that lead to wrongful convictions is an exercise in generalizing and simplifying. Patterns must be identified, themes traced.

   It should come as no surprise, therefore, that scholars have focused their attention on the most direct and visible way things go wrong in the criminal justice system, the presentation of false, mistaken, or misleading evidence to juries. Common sense suggests that when a system's inputs (the evidence presented to juries) are flawed, its outcomes (the verdicts they produce) are unreliable. (20)

   But not all wrongful convictions can be laid at the feet of flawed evidence. Perfect inputs do not guarantee perfect outcomes in any system where fallible human beings are asked to operate the machinery of justice. (21) Jurors can be lazy, biased, or insufficiently analytical. Prosecutors can be overzealous, manipulative, or intimidating. Defense counsel can be overworked, uninformed, or just plain incompetent. And sometimes defendants are simply unlucky.

   Moreover, the problems of confused jurors, overzealous prosecutors, and incompetent defense counsel are not randomly occurring events attributable solely to the moral or cognitive failings of particular individuals. To the contrary, the nature of these problems and their frequency can be dramatically affected by the rules, incentives, norms, and directions impressed upon the individuals who serve as rotating parts in the criminal justice machine.

   To systematically study how those overarching structural rules and norms shape individual behavior is, in the words of one of my colleagues, (22) to shift our attention further down the wedge of injustice. Our goal is not to identify wrongful outputs that shock our collective conscience or flawed inputs that lead directly to wrongful convictions. Instead, we seek to identify systemic design failures that globally infect the entire criminal justice process and indirectly lead to wrongful convictions and other injustices in a large but often difficult to identify set of cases.

   1. Some Diverse Examples

      Some of the systemic design failures in our criminal justice system are easy to identify and have been the subject of extensive commentary. Perhaps the most familiar of these is the failure of our system to ensure that all criminal defendants are represented by competent and committed defense counsel. (23) Another whose relative attention has grown in recent years is the failure of our system to develop an incentive structure for prosecutors that rewards the pursuit of justice rather than the pursuit of competitive advantage. (24)

      Other systemic problems are less well understood. For example, while both prosecutors and defense lawyers operate on the assumption that the content of jury instructions matters greatly, relatively little is known about the ways in which jurors process and respond to the myriad formulations of common charges. It may be that through a combination of luck and evolution we have stumbled upon verbal formulations that accurately convey the essence of our legal rules to untrained amateurs. However, the little bit of empirical evidence that we have strongly contradicts that Pollyannaish view and suggests that many common jury charges breed randomness and error. (25)

      Some overarching norms and structures widely recognized as integral to our criminal justice system nonetheless remain under-examined as...