Wrongful Conviction

Scope of the Problem

The American criminal justice system has historically prided itself on taking great precautions to guard against wrongly convicting the innocent. The American courts and commentators have long espoused a philosophy of caution, expressed in the maxim that it is better to let 10 (or 100) guilty people go free than to convict one innocent person. Nonetheless, there has never been real doubt that the system occasionally errs.

Even prior to the DNA revolution, scholars sought to identify wrongful convictions. In 1932, Edwin Borchard identified what he believed to be 65 wrongful convictions in serious cases. More recently, in 1987 and 1992, Hugo Bedau, Michael Radelet, and Constance Putnam identified more than 400 wrongful convictions in cases potentially subject to capital punishment. These and other similar efforts, however, were subject to challenge by skeptics, who doubted innocence in some of the cases, and even when accepted, the cases were largely dismissed as anomalies rather than symptoms of systemic flaws.

The DNA cases changed this. The DNA cases presented unassailable scientific proof of error. They also demonstrated that errors have occurred not just in those cases where proof of guilt appeared tenuous but also in cases where the evidence of guilt had appeared overwhelming. Moreover, they revealed that wrongful convictions are more prevalent than previously thought and that they reflect systemic flaws.

Determining a precise wrongful conviction rate is very difficult, as it is impossible to identify the whole body of erroneous convictions. To compound the problem, establishing an acceptable definition of “wrongful [Page 870]conviction” is itself difficult, especially in cases that lack dispositive DNA or other conclusive scientific evidence. Not everyone “wrongly convicted” is actually or completely innocent. Rather, some individuals who are released from their convictions because of procedural errors or inadequate evidence to prove their guilt—and who are thus legally innocent—might nonetheless be factually guilty. And though they are legally innocent, they may not be completely innocent since, for example, they may be guilty of a lesser charge. Distinguishing between these categories can be challenging.

In recent years, however, new evidence has identified a significant number of individuals who were in fact completely innocent but were nonetheless convicted. Between 1989 (the year of the first DNA exoneration in the United States) and 2006, at least 189 people who had been convicted of serious crimes in America were exonerated by postconviction DNA testing. Although significant, this number reflects just the tip of what is certainly a much larger iceberg. As important as DNA can be, it is present in only a small percentage of all criminal cases, and it is preserved and available for postconviction analysis in just a fraction of that total. Hence, the DNA exonerations reveal only a small percentage of all wrongful convictions.

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