Advancing Wrongful Conviction Scholarship: Toward New Conceptual Frameworks

Abstract

As wrongful conviction scholarship grows, some scholars have suggested that existing research on miscarriages of justice lacks theoretical grounding and methodological sophistication, arguing that the use of social science theory may help to better understand wrongful convictions. In this article, we suggest that it may be useful to draw upon conceptual frameworks found in traditional criminal justice studies, discuss what such approaches might suggest about miscarriages of justice, and begin to explore the questions or topics they may encourage interested researchers to pursue. Furthermore, through this broad theoretical lens, we can see that criminal justice theory is present, at least implicitly, in some existing innocence literature, and that making such theoretical connections more explicit may help to move the study of wrongful conviction into the mainstream of criminal justice research.

Keywords:

• wrongful conviction
• miscarriages of justice
• actual innocence
• criminal justice theory

Acknowledgments

The authors wish to thank Dr. James Acker and the anonymous reviewers for their insightful comments on this manuscript. An earlier version of this paper was presented at the American Society of Criminology Annual Meeting.

Notes

1. For present purposes, we define “wrongful convictions” as those involving the conviction of factually innocent individuals. While we understand that the phrase “miscarriages of justice” generally includes a wider range of erroneous criminal justice outcomes, including wrongful convictions, we use the terms “miscarriages,” “miscarriages of justice,” and “wrongful conviction” interchangeably throughout this essay in reference to the foregoing definition of wrongful convictions.

2. These figures are current as of August 2013.

3. The federal Justice for All Act of 2004 (Pub. Law 108-405) provides standards and funding for DNA testing for potential innocents and increased compensation for federal exonerees (Zalman, 2006). At least 34 states and the District of Columbia have now taken at least some steps to prevent erroneous convictions (Norris, Bonventre, Redlich, & Acker, 2010/2011), and 29 states and the District of Columbia provide compensation for exonerees (Norris, 2012). Furthermore, over 500 police and sheriff’s departments now record custodial interviews (Sullivan, 2005; Sullivan & Vail, 2009).

4. For a discussion of the history of wrongful conviction scholarship, see Leo (2005) and Gould and Leo (2010).

5. For example, some studies (e.g. Bedau & Radelet, 1987; Free & Ruesink, 2012) relied upon the researchers’ subjective evaluations of cases to determine who was actually innocent and wrongly convicted. Other studies (e.g. Gross et al., 2005) have relied upon official acknowledgment of error in identifying wrongful convictions.

6. Kraska and Brent (2011) identify eight orientations: Rational/Legal; System; Crime Control vs. Due Process; Politics; Socially Constructed Reality; Growth Complex; Oppression; and Late Modernity. We have collapsed the perspectives around some of the key theoretical ideas and have named them based on these underlying ideas. For example, both the Rational/Legal and System orientations draw upon “forced reaction theory.” Thus, we discuss these as one perspective based on the underlying theoretical idea. It is important to note that these perspectives (both as Kraska identified them and as we have discussed them here) are not mutually exclusive; there is a fair amount of overlap. However, though they sometimes contain similar ideas, each offers a unique perspective on criminal justice that may contribute independently to our understanding of miscarriages of justice.

7. Many of the ideas about wrongful convictions expressed herein have been discussed by other scholars and/or advocates. For the most part, however, the theoretical aspect of the research has not been made explicit either because it was deemed unimportant for their purposes or the fact that their analysis was rooted in an established theoretical framework was overlooked. There are several exceptions to this, which will be discussed. The overall argument, however, is that these theoretical connections must be made explicit if miscarriages research is to become a prime topical area of social scientific inquiry in the mainstream of criminological and criminal justice scholarship.

8. For a review of the wrongful conviction literature that engages in a fault-based discourse on prosecutors, see, Burke (2010).

9. As Leo (2005) notes, the Blackstone principle, or some variation of it, has been the starting point of many of the existing books on wrongful convictions. He describes the “familiar plot” (p. 203) of these works as first announcing that in the American criminal justice system, it is better that some number of guilty men (ranging from 10 to 1000) escape than that one innocent be convicted, then pointing out the protections designed to ensure this, and then arguing that wrongful convictions occur regularly but largely go unnoticed. This was then followed by a description of innocence cases, the causes of the errors, and reforms that might prevent them. Though Leo offers a sound critique of the “familiar plot” and makes several suggestions for moving the study of miscarriages of justice forward, he does not acknowledge that the fundamental principles at the heart of much miscarriages scholarship, such as the Blackstone ratio, as well as the definitional issues associated with such research, are matters in and of themselves that can and should be discussed and debated by social scientists in light of our theoretical perspectives.

10. For an in-depth discussion of symbolic politics and law-and-order policies, see Scheingold (1984). We suggest that the influence of symbolic politics on innocence reforms may be less dramatic than for crime control policies because crime, unlike wrongful conviction, is a very public and highly salient political issue.

11. As Zalman (2006) points out, the rhetoric often used “suggests that emotions among innocence activists are akin to those of participants in reformist social movements” (pp. 472-473).

Additional information

Notes on contributors

Robert J. Norris

Robert J. Norris is a PhD candidate in the School of Criminal Justice at the University at Albany. He earned his BA in Sociology from the University of North Carolina-Greensboro and his MA from the University at Albany. His research interests include law, society, and politics; miscarriages of justice; social change and legal reform; and criminal justice decision-making. He has authored or co-authored several academic articles and book chapters on state policy responses to wrongful convictions and the decision-making of suspects under investigation and at trial.

Catherine L. Bonventre

Catherine L. Bonventre earned her MS in forensic molecular biology at the University at Albany and her JD, with a concentration in criminal law, from Albany Law School. She is currently working on her PhD at the University at Albany School of Criminal Justice. Her research interests include miscarriages of justice; judicial policy-making and implementation in the criminal justice context; crime laboratories and forensic science; and courts and the judicial process. She has worked as a volunteer attorney for the Arizona Justice Project, an organization that helps inmates overturn wrongful convictions. She is licensed to practice law in the state of New York.