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The lessons of wrongful convictions.

The year 2009 will mark two decades since the first DNA exoneration. Over that time we have seen hundreds of people exonerated of crimes they did not commit. As these innocent men and women have walked out of prison, some of them even having been released from death row, a new wave of research has arisen into the sources of wrongful convictions.

At first the expression "wrongful convictions" may seem like a loaded term. Court observers have known for years that judges and juries occasionally make mistakes that are reversed on appeal. But most of those cases involve issues of "legal innocence," in which a defendant's conviction is overturned regardless of his involvement in the alleged crime because the state violated the defendant's fundamental rights. What makes the new findings so startling is that they largely concern cases of "factual innocence," meaning that someone other than the convicted defendant committed the crime.

Although we cannot yet explain why errors lead to conviction in some cases and not others, virtually all of the studies of wrongful convictions have identified similar bases for these grievous mistakes:

* Errors in eyewitness identification

* High-pressure interrogations, particularly of suspects with mental deficiencies

* Antiquated forensic testing

* Inadequate, if not ineffective, assistance of defense counsel

* Tunnel vision by law enforcement officers or prosecutors, including inadvertent error and misconduct

* Failures to disclose exculpatory evidence

* Testimony by questionable informants

* The lack of adequate post-conviction remedies to address wrongful convictions

It is difficult to confront the frailties of the criminal justice process that can send innocent people to prison or allow the guilty to roam free without feeling compelled to prevent future errors from occurring. Whether we identify with the innocent suspect who is convicted and left to serve time for a crime he did not commit; the helpless victim who is attacked by a criminal who should have been locked up; the police officer or prosecutor who errantly is convinced of a case he later comes to doubt; or the taxpayer who must pay for the costs of convicting the innocent, it is both good public policy and common human decency to wish to eliminate wrongful convictions.

Nonetheless, much of the literature on wrongful convictions still researches the nature of these errors rather than vigorously addressing their reform. It is as if we are stuck in Richard Leo's "familiar plot" of wrongful convictions, (1) convinced that if we keep telling the story of innocent men who have been erroneously convicted, the recommendations we offer will be enacted by policymakers who recognize the wisdom of our prescriptions. Not that I am immune from this criticism. As chair of the Innocence Commission for Virginia and author of a book on wrongful convictions, I, too, have spent considerable time documenting the causes of wrongful convictions. Our efforts have not been wasted, but the plethora of reports that describe similar findings should be a sign that what we have uncovered goes beyond a single jurisdiction or state. There are systemic frailties in the American criminal justice process, weaknesses that warrant a coordinated and strategic reform effort.

What To Do?

Research on wrongful convictions goes back at least as far as 1932, when Yale law professor Edwin Borchard first probed systemic errors in the criminal justice system. Since that time, many of the recommendations for wrongful convictions have coalesced around similar measures. Borchard, for example, urged courts to refuse to introduce a defendant's confession at trial unless it was given before a magistrate and in the presence of witnesses. He also called for independent investigative bodies to review wrongful convictions. (2) Seventy years later, Barry Scheck and Peter Neufeld, the godfathers of innocence projects, outlined several proposals for reform in their book with Jim Dwyer.

Like Borchard, the trio called for the creation of state commissions to investigate wrongful convictions. They also urged post-conviction DNA testing, improved practices for eyewitness identification, and the elimination of "junk science," such as hair comparisons, as courtroom evidence. (3)

None of these recommendations should be surprising to anyone who has read the reports of scholars and advocates who have examined wrongful convictions, for many of the state commissions on wrongful convictions have reached similar conclusions. Beginning with the North Carolina Actual Innocence Commission, groups in Illinois, Virginia, and California have collectively called for changes in eyewitness identification methods and interrogation procedures, increased funding for defense representation, special training for police officers, advanced protocols for scientific evidence, open files discovery, new post-conviction remedies, and greater sensitivity to these issues by the courts. Among our allies, government commissions in the United Kingdom and Canada have made similar recommendations, including such measures as electronic recording of custodial interrogation and eyewitness identification. Britain's Royal Commission on Criminal Justice, for example, has returned over "352 recommendations covering a range of activities, including police investigations, safeguards for suspects, the prosecution process, pretrial procedures, the trial process, forensic science, and other expert evidence and the appeals process." (4)

With so many reports focused on similar recommendations, it may be difficult to decide where to begin enacting reform. In general, though, two issues have received the greatest emphasis among those who have studied wrongful convictions. Perhaps the most prevalent has been the electronic recording of custodial interrogations, a top priority of Northwestern University's Center on Wrongful Convictions, (5) and an issue ably championed by Thomas Sullivan, co-chair of the Illinois Commission on Capital Punishment. There is also general agreement about the need to implement four changes to eyewitness identification procedures to improve their accuracy: adopting double-blind procedures so that neither witnesses nor officers conducting the procedure know who the suspect is; instructing witnesses that the actual perpetrator may or may not be present in a lineup or photo array; selecting fillers who closely match the suspect; and gauging the witness's confidence immediately after an identification and before later feedback clouds the person's memory. (6)

The Future of Innocence-based Reform

As of 2008, a minority of jurisdictions has implemented these recommendations, let alone addressed frailties in other parts of the criminal justice process. Their recalcitrance is not unexpected, but it is troubling when one considers that the "window of opportunity" to prevent wrongful convictions may be closing. "As DNA is used increasingly before conviction, the body of wrongful convictions that can be exposed through postconviction DNA testing will diminish, and ultimately disappear." (7) This is not to say that wrongful convictions will vanish--although we can certainly hope that DNA analysis will clear more innocent suspects before trial--but there are likely to be fewer uncontested exonerations that generate public attention.

This scenario presents a mixed bag. On one hand, we should applaud a justice system that applies the latest available technology to identify the guilty and clear the innocent as early as possible in the criminal justice process. Even recognizing that many crimes lack human biological evidence, and that DNA testing is sometimes limited to placing a suspect at a crime scene without proving that he actually committed the crime, DNA analysis is nonetheless a significant step forward in criminal investigations that we all should welcome.

On the other hand, DNA exonerations have been the "hook" to attract press attention to wrongful convictions and the various frailties in the criminal justice system that unfortunately, and most often unwittingly, convict the innocent. As innocent men and women have walked out of prison upon the finding of exculpatory DNA evidence, reporters have been there to chronicle the problem of wrongful convictions and the deep pain and suffering left in their wake. Without such press attention, reformers would have had a narrow or no window to press their proposals, for few observers would have perceived there to be a problem in the criminal justice system to address.

Yet, what exactly is "the problem" that would justify policy reform? Even a short perusal of the criminal justice literature would find many problems, from criticisms that the justice system is biased against the poor (8) to concerns that victims have little say in sentencing. (9) These concerns are valid, but what attracted the public's attention--and what undoubtedly has driven recent reform of the criminal justice system--is undeniable proof that innocent people have been convicted. Not even innocence alone explains the groundswell for reform. It is the prospect of executing an innocent person, a possibility that no longer seems so remote, that has largely driven press attention and captured the public's concern.

If justice reform has largely turned on innocence, what will happen to other worthy issues of reform in the criminal justice system if the number of DNA exonerations declines? Some in the reform community say it is time to abandon innocence as an organizing principle. Not only are clear claims of innocence past their zenith, they say, but focusing on innocent suspects deflects needed attention from the greater swath of defendants who, although perhaps guilty, have been caught, prosecuted, and convicted by methods that subvert the Constitution. (10) For that matter, say likeminded advocates, the term "innocence commission" or similar such titles conveys a pro-defense bias to reform activities. (11)

These reformers have it half right. There is little doubt that the criminal justice system suffers from a number of frailties--weaknesses that go beyond the factors that have convicted innocent people. The work of the state innocence commissions has turned up a whole host of issues, from failures to record custodial interrogations, to problematic identification procedures, to inadequate defense counsel. Of course, these problems are much more serious when they lead to the wrongful conviction of an innocent person, but they represent failings in their own right when they sidetrack investigations, slow the justice process, or deny individuals the true measure of rights promised in the Constitution.

The central question, then, is not whether further reforms are needed apart from those necessary to protect the innocent from wrongful conviction* That is elementary. The more difficult, strategic question is how to pursue such an agenda if innocence "sells" yet clear claims of innocence are likely to decline. Americans will not miraculously "see the light" of justice reform simply because certain practices do not match the promised ideals of the criminal justice system. For the most part, the public is content to trust criminal justice professionals to carry out these responsibilities, convinced that most of the time the system will work and that, in any event, they themselves are unlikely ever to be on the receiving end of criminal punishment. "It doesn't take a rocket scientist to understand that indigent criminal defendants don't have much of a political constituency," says Virginia appellate judge Robert Humphreys, a stark reminder that recent criminal justice reform has relied heavily on the issue of innocence. (12) But for the shocking revelations that innocent people have been convicted, and that some of them would otherwise have been executed, the public's veil of trust might never have been pierced.

For that matter, Americans are reluctant to press for reforms that would largely benefit the guilty. Fundamentally, the public wants protection from crime, not necessarily assurances that the rights of defendants, and especially guilty ones at that, will be protected. Consider an editorial from the Virginian-Pilot, a newspaper that has pressed strongly for justice reform. Writing shortly after DNA testing confirmed the guilt of Roger Coleman (who had been executed while claiming his innocence), the editorial board sought to "remind ... those who trusted for many years in Coleman's innocence ... that vicious killers are also, at times, adept liars." (13)

If the paper's admonition was a slight rap to the reform community's knuckles, other commentators have delivered a hard blow to the head. Kerry Dougherty, a columnist for the Virginian-Pilot, whipsawed reformers when writing of her "respect [for] those who oppose capital punishment on moral grounds" before condemning the "callous indifference these folks frequently display toward the victims of crimes and their willingness to believe the drivel about innocence that echoes along death row." (14) Even Roy Malpass, a professor at the University of Texas-El Paso and a past participant in the research group on eyewitness identification for the National Institute of Justice, has publicly taken issue with the claim that "it's better to let 10 guilty persons free to protect against one innocent person being wrongfully convicted.... 'I'm fine with that when we're dealing with juvenile shoplifters,'" Malpass says. "'I'm not fine with that for terrorists.'" (15)

As unpleasant as some activists may find it, reform must appeal to a real-politik. There is nothing unique about this; as the last several decades of political science research reveals, most voters and politicians act on the basis of self-interest. (16) In practice, this means that innocence will continue to generate interest in reform so long as there remain indisputable, serious cases of wrongful conviction. Although innocence does not touch the public directly, it does go to the core of what it means to trust the criminal justice system and to delegate its operation to others. No one wishes to believe that she accepts a criminal justice process that could convict and irrevocably punish innocent individuals. However, if as predicted, cases of factual exoneration are likely on the wane, reformers must consider a different strategy.

The future of innocence-based reform may be even worse if political scientists Frank Baumgartner and Bryan Jones are correct about mechanism of policy change. According to the two, policy diffusion looks like a logistic S-shaped curve. They write, "Policy adoption is slow at first, then very rapid, then slow again as the saturation point is reached." Change tends to happen quickly, returning to long periods of equilibrium as the "attention of governmental elites" wanes and "the apathy of those not keenly interested in the particular issue" allows problems to recede from the policy agenda. (17)

To combat these natural tendencies, the reform community needs to change the terms of the debate and the locus of reform. Reformers must appeal to the public's self-interest, advancing policy proposals on their ability to better protect the community and save tax dollars. These are not specious arguments. Many of the recommendations advanced by the Innocence Commission for Virginia and other state innocence commissions can help law enforcement officials to better identify the correct perpetrators, encourage guilty pleas, and lock up dangerous criminals without fear that a conviction will later be overturned because police had the wrong suspect. Even measures generally associated with "defendants' rights"--such as adequately compensated trial counsel--can save taxpayers money because appeals will be shorter and retrials less likely. It costs over $20,000 per year to incarcerate a person. (18) It goes without saying that these funds should not be wasted.

If this seems like a conservative agenda for reform, it is, but in many ways that is the point. Reform will go nowhere if actors simply wait for "enlightened [officials to] recognize and honor their moral and constitutional responsibilit[ies]." (19) None of the recommendations advanced by the various state study commissions will be enacted simply by appealing to civil liberties or a call to the higher good. Perhaps this is a weakness of the American political process; maybe it represents a failure of public action to realize the principles of our nation's founders. Be that as it may, it is a political reality that we must address. No one ever got elected in this country by appearing "soft on crime," which unfortunately is how criminal justice reform looks to many politicians and voters. We can curse this phenomenon and futilely seek to "educate" the public, or we can employ arguments and imagery that are politically viable. The policy proposals have not changed; only the supporting rhetoric has.

Encouraging Professionalism

Political solutions generally require compromise, that is, the proverbial search for common ground. Here, the task is not as difficult as some might think, for the reform and law-and-order communities actually have much in common. We all seek protection from crime. We all desire wise and efficient stewardship of public monies. If this essay is largely sympathetic to criminal justice reform, it also adds a caution that we not confuse reform with antipathy to the officials who serve in the criminal justice system and permit it to function. Experience tells me that the vast majority of law enforcement officers, prosecutors, judges, and corrections officers are dedicated professionals in the service of justice. Although I understand the argument of defense attorneys that there is something noble about attending to the needs of society's worst off--its indigent criminal defendants--there is also honor in protecting our communities from crime and helping society to mete out justice. Reform must recognize and respect these principles, not seek to oppose them.

Perhaps the best way to maintain momentum for reform is to inculcate reform values into the practices of criminal justice officials. Up until now, most reform efforts have been focused on legislatures and judges, seeking to codify into law the various "lessons learned" from post-conviction exonerations. Yet if innocence cases will be harder to find, and if the political process is generally unsympathetic to criminal justice reform (or at least to measures that will not directly reduce crime), then policy actors need a different outlet. Baumgartner and Jones classify this challenge as "venue shopping," or moving an "issue from the realm of parallel processing to the realm of serial processing by reallocating attention." (20) Put another way, if a policy avenue is unlikely to prove successful, advocates need to redefine the locus of reform.

The most promising venue for criminal justice reform lies in the local police departments, sheriff's offices, and district attorney's offices that form the front-line of America's criminal justice system. This initially may seem odd to some observers, since law enforcement officers and prosecutors are not usually considered top advocates for criminal suspects. But the same reforms that may be envisioned as pro-defendant can also be advanced under the aegis of greater professionalism and best practices for criminal justicians. For example, many police officers would like equipment to videotape interrogations, because their colleagues in other jurisdictions report a rise in guilty pleas when suspects' statements are recorded and shown at trial. (21) Prosecutors, too, say their jobs are often easier when defendants are well represented; in such cases, state's attorneys need not perform both their responsibilities and those of the defense in order to stave off a later claim of ineffective assistance of counsel. (22) Police and prosecutors also require in-service training for their employees, which might provide a fine opportunity to review the risks and nature of "tunnel vision" that unfortunately can sidetrack investigations and prosecutions.

Reforms like these allow for collaboration across the spectrum of the criminal justice system, rather than perpetuating the antagonistic culture that has some in the defense bar pointing fingers at police and prosecutors as unwilling to evolve and the latter refusing to acknowledge weaknesses in their practices that could be improved. The American criminal justice system lags embarrassingly behind its brethren in medicine, whose practitioners are now winning plaudits for openly addressing problems that occur during medical procedures. A prime example is Brigham Hospital, one of Harvard Medical School's teaching hospitals, which has been recognized as "a leader in patient safety" in part for its "openness when things go wrong. 'It's a culture that says, yes, we have a problem, let's shine a light on it and fix it rather than trying to cover it up,' says chief medical officer Dr. Andy Whittemore." (23)

If there is any profession that might have feared liability for openly acknowledging its errors, it is medicine, which frequently has to deal with attorneys and ensuing malpractice suits. However, if doctors can take steps toward admitting their errors and working to remedy and prevent them, then law enforcement officers and lawyers should be willing to do the same. It should not have to take additional exonerations--including the dreaded possibility that an executed defendant will later be proven innocent--to convince policymakers and justice officials to do for our criminal justice system what doctors and hospital administrators have done for medicine. The stakes are high in both vocations and, as trained professionals, criminal justicians ought to demonstrate their ability to learn from and address problems that may occur in their field, not just circle the wagons.

A More Perfect System

The preamble to the United States Constitution explains that the framers of our government sought "to form a more perfect union." Over two hundred years later, critics claim that those who seek to reform the American criminal justice system "are demanding an impossibility--a perfect system." (24) With due respect, such criticisms misunderstand and mischaracterize the case for reform. Regardless of whether the errors of the criminal justice system are episodic or epidemic, they still warrant review and reform. This is not because reform will lead to an error-free process, but because the participants in the system deserve our attention and efforts. Victims should not have to relive a crime through multiple trials or, more tragically, be attacked by a felon who could have been caught earlier. Police officers and attorneys should have the latest technology available to them to close cases and screen out the uninvolved. And, of course, the innocent should not be subject to erroneous charges or wrongful convictions.

None of these concerns makes one unsupportive of, or unsympathetic to, the dedicated men and women who staff our law enforcement agencies, prosecutors' offices, and judicial benches. Rather, they demand the best from the state's penal powers. To reject post-exoneration review, or to defend blindly the criminal justice process without being open to new, best practices, is to dishonor the oath that many of us have taken as officers of the court, the law, or the state. Criminal justice is a profession. It is time we start treating it as one.

NOTES

(1) Richard A. Leo, "Rethinking the Study of Miscarriages of Justice: Developing a Criminology of Wrongful Convictions," Journal of Contemporary Criminal Justice 12 (2005): 201-33.

(2) Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putnam, In Spite of Innocence (Boston: Northeastern University Press, 1992), 278.

(3) Barry Scheck, Peter Neufeld, and Jim Dwyer, Actual Innocence: When Justice Goes Wrong and How to Make it Right (New York: Signet, 2002), 351-57.

(4) David Kyle, "Correcting Miscarriages of Justice: The Role of the Criminal Cases Review Commission," Drake Law Review 52 (2004): 657.

(5) Steven A. Drizin and Marissa J. Reich, "Heeding the Lessons of History: The Need for Mandatory Recording of Police Interrogations to Accurately Assess the Reliability and Voluntariness of Confessions," Drake Law Review 52 (2004): 619.

(6) When the National Institute of Justice released its training manual on eyewitness evidence in 1999, the agency concluded that there was "not a consensus" to recommend sequential over simultaneous line ups, Eyewitness Evidence: A Guide for Law Enforcement (NIJ, October, 1999), available at http://www.ojp.usdoj.gov/nij/pubs-sum /178240.htm. Since that time the debate has continued. Although most research on eyewitness identification and most of the reports on wrongful convictions recommend sequential procedures, there is a "dissenting view among some well-respected social scientists that the research has not proceeded far enough to determine under what conditions, if any, a sequential line up is to be preferred to a simultaneous line up," American Bar Association Criminal Justice Section, Ad Hoc Innocence Committee, Achieving Justice: Freeing the Innocent, Convicting the Guilty (Washington, DC: American Bar Association, 2006), 35.

(7) Keith A. Findley, "Learning from Our Mistakes: A Criminal Justice Commission to Study Wrongful Convictions," California Western Law Review 38 (2002): 337.

(8) Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 8th ed. (Needham Heights, MA: Allyn and Bacon, 2007).

(9) See http://www.jfa.net/ (accessed October 10, 2006).

(10) David R. Dow, "The End of Innocence," New York Times, June 16, 2006, A27.

(11) Findley, "Learning from Our Mistakes."

(12) Robert J. Humphreys, "The State of Indigent Defense in Virginia," The Journal of the Virginia Trial Lawyers Association 18 (2006): 8.

(13) Editorial, "Final Verdict in on Roger Coleman," The Virginian-Pilot, January 14, 2006, B8.

(14) Kerry Dougherty, "Supporters of Dead Killer Can Eat Crow at DNA result," The Virginian-Pilot (January 14, 2006), B1.

(15) Kate Zernike, "Questions Raised Over New Trend in Police Lineups," New York Times, April 19, 2006, A1.

(16) See, for example, Bryan Caplan, "Libertarianism Against Economism: How Economists Misunderstand Voters, and Why Libertarians Should Care" (unpublished paper, George Mason University, 2000), available at http://www.gmu.edu/departments/economics/bcaplan/selfir.doc (last accessed October 17, 2006).

(17) Frank R. Baumgartner and Bryan D. Jones, Agendas and Instability in American Politics (Chicago: University of Chicago Press, 1993), 18.

(18) http://www.nadcp.org/whatis/ costoftreatment.html (accessed October 11, 2006).

(19) Humphreys, "The State of Indigent Defense in Virginia," 8.

(20) Baumgartner and Jones, Agendas and Instability in American Politics, 20.

(21) Thomas P. Sullivan, "Electronic Recording of Custodial Interrogations: Everybody Wins," Journal of Criminal Law and Criminology 95 (2005): 1128-30.

(22) Judge Robert Humphreys, interview by author, September 6, 2006.

(23) Claudia Kalb, "Fixing America's Hospitals," Newsweek, October 16, 2006, available at http://www.msnbc.msn.com/id/15175919/ site/newsweek/(accessed October 16, 2006).

(24) Joshua Marquis, "The Myth of Innocence," Journal of Criminal Law and Criminology 95 (2005): 501-21.

Jon B. Gould, author of The Innocence Commission: Preventing Wrongful Convictions and Restoring the Criminal Justice System (2007), is associate professor and director of the Center for Justice, Law and Society at George Mason University. He has served as chair of the Innocence Commission for Virginia (ICVA).
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Title Annotation:COMMENTARY
Author:Gould, Jon B.
Publication:Criminal Justice Ethics
Article Type:Report
Geographic Code:1USA
Date:Jan 1, 2008
Words:4250
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