The Literature of Wrongful Conviction

The Wrongful-Conviction Pandemic

When a new genre develops unrecognized, without a name, choices for an appellation are wide open. So please meet the newly christened “Literature of Wrongful Conviction.”

Until about thirty years ago, when inmates in United States prisons claimed they had been wrongfully convicted, that in fact they were innocent of the crimes leading to their incarceration, they met with skepticism at best, and often scorn. “All inmates claim they are innocent,” responded police officers, prosecutors, judges, jurors, legislators, professors and just about everybody else weighing in.

It did not seem to bother anyone that the foundational assumption was wrong—actually, only a small percentage of guilty inmates claim innocence. Anybody who spends time in prisons or corresponding with prisoners understands that reality. But the mistaken conventional wisdom remained the conventional wisdom decade after decade: inmates were liars when stating their innocence, and most inmates claimed innocence. End of discussion.

Until approximately twenty years ago, only a few individuals spoke out publicly against this accepted view. Everything began to shift around 1990, however, when the forensic testing of DNA became practical. Finally claims of innocence could be measured against evidence that—when analyzed correctly, using scientific protocols—established the truth. Because of DNA testing, assertions that there were no wrongful convictions became instead a discussion about the frequency of wrongful convictions.

Police, prosecutors, judges and some politicians have downplayed the problem, claiming that the vast majority of criminal cases are decided correctly. It is impossible to generalize at the local level, where arrests and prosecutions actually occur; after all, the United States is divided into about 2,500 federal and state criminal-justice jurisdictions. Some of those jurisdictions rarely if ever experience wrongful convictions because police and prosecutors are committed to finding the truth, refusing to rush their judgments. Other jurisdictions (for example, Chicago, Illinois, and Houston, Texas) have experienced wrongful convictions year after year because too many police detectives and prosecutors rush to judgment. Racism within law enforcement is clearly a factor in some of the cases, although there are plenty of documented wrongful convictions involving Caucasians.

Overall, an estimate of about 5 percent actual innocence among inmates seems reasonable, based on extensive research, primarily by law professors, sociologists and journalists. That percentage would mean tens of thousands of innocent men and women are incarcerated. Some reside on death row. It is also inarguable that at least a few innocent inmates have been executed in states where the death penalty remains in force. Other innocent inmates have died in prison after bouts with disease. In many wrongful-conviction cases, the actual murderers, rapists, robbers remain free.

Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice
Edwin M. Borchard.
Yale University Press, 1932, 421 pp., $26 (paper).

Edwin Borchard Sees the Previously Invisible

In 1932, Edwin M. Borchard sounded what may have been the first alarm about wrongful convictions to reach a substantial general audience. A Yale University law professor specializing in international trade, Borchard became involved in the realm of criminal (in)justice as an avocation; he felt outrage about cases of actual innocence that came to his attention, an outrage grounded in the refusal of law enforcement authorities and their allies in state legislatures or the United States Congress to compensate exonerated inmates for their lost years behind prison bars...