'A House Divided': A Response to Professor Abbe Smith's 'In Praise of the Guilty Project: A Criminal Defense Lawyer's Growing Anxiety About Innocence Projects'
University of Pennsylvania Journal of Law and Social Change, Vol. 15
24 Pages Posted: 13 Dec 2012
Date Written: December 11, 2011
With the rapid rise in number, and success, of innocence projects across the country, has come criticism of their purported missions and their ultimate benefit to the criminal justice system, particularly as they affect issues of indigent criminal defense. In one of the most thoughtful and provocative articles written in the area to date (In Praise of the Guilty Project: A Criminal Defense Lawyer’s Growing Anxiety about Innocence Projects, University of Pennsylvania Journal of Law and Social Change (2010)), Georgetown Law Center Professor Abbe Smith argues that a combination of factors characteristic of innocence work – arrogance of purpose, the change of focus from prejudice to innocence as the currency of reform, and a focus on innocence clinics as opposed to traditional criminal defense clinics – are at odds with, and even threaten, core values of indigent defense.
In explaining that Professor Smith’s concerns are the natural byproduct, rather than the characteristics, of the tension between traditional modes and approaches taken by criminal defense lawyers – namely those steeped in the tradition of zealous public defense on behalf of the indigent criminally accused – this article seeks to offer an accommodation between the two areas of practice. Professor Smith’s claim about arrogance, for example, is, in reality, a recognition by innocence practitioners that the work has reformist value over and above the value provided to a discrete client. The sense of arrogance that Professor Smith identifies actually derives from innocence practitioners efforts to leverage the injustices visited on their clients into meaningful and lasting reform. Similarly, the focus on innocence as the currency of criminal justice reform is not the “fault” of innocence work, and, instead of redounding to the detriment of the criminal accused generally, frequently works to their benefit inasmuch as many legislative and policy reforms which are the result of innocence work are non-sectarian in their benefits. Lastly, in contrast to Professor Smith’s claims, this article argues that not only have innocence projects not “replaced” traditional criminal defense clinics in law schools, but the pedagogical goals and values inherent in criminal defense clinics also exist in innocence clinics.
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