Has the Innocence Movement Become an Exoneration Movement? The Risks and Rewards of Redefining Innocence

Daniel Medwed, ed., Innocent Reflections: A Quarter Century of DNA Exonerations (Cambridge University Press 2016)

Univ. of San Francisco Law Research Paper No. 2016-16

37 Pages Posted: 30 Mar 2016 Last revised: 17 May 2016

Richard A. Leo

University of San Francisco - School of Law

Date Written: March 1, 2016

Abstract

This chapter describes the conceptual move away from factual innocence to legal exonerations based on new evidence of innocence as the emerging intellectual foundation of the Innocence Movement. The chapter also analyzes the costs and benefits of this paradigm shift in how we count, classify, talk, and think about the problem of innocence in America.

The DNA revolution and its ripple effects in American criminal justice have demonstrated that the problem of wrongful conviction in America is structural and persistent. The use of post-conviction DNA testing created the opportunity for an Innocence Movement to emerge, and the DNA exonerations of the last 25 years have transformed lay and official perceptions about the problem and prevalence of wrongful conviction in America and have served as the foundation for many criminal justice policy reform proposals.

The creation of the National Registry of Exonerations, which chronicles both DNA and non-DNA exonerations, has subtly changed how scholars and journalists classify and count innocence, or its proxy. The Registry moved away from actual or factual innocence to a more legalistic idea of an exoneration that, as defined by the Registry, is essentially an erasure of a pre-existing conviction by a governor, prosecutor, judge, or jury based on some new evidence of factual innocence. This conceptual move, if successful in the long run, offers the possibility of greater empirical insight and understanding into the problem of wrongful conviction and its solutions than ever before. But if the Registry’s more legalistic criteria for case inclusion return us to an era of contested judgments about the factual guilt and innocence of its subjects, critics may seek once again to dismiss the problem of wrongful conviction as too aberrational to merit serious scholarly or policy concern. The challenge of the Innocence Movement going forward is to build on the gains of the last 25 years of DNA testing while not creating opportunities for frivolous critiques from right-wing or left-wing innocence skeptics.

Keywords: legal exoneration, factual innocence, Innocence Movement, DNA testing, wrongful conviction, criminal justice, criminal law, National Registry of Exonerations

Suggested Citation

Leo, Richard A., Has the Innocence Movement Become an Exoneration Movement? The Risks and Rewards of Redefining Innocence (March 1, 2016). Daniel Medwed, ed., Innocent Reflections: A Quarter Century of DNA Exonerations (Cambridge University Press 2016); Univ. of San Francisco Law Research Paper No. 2016-16. Available at SSRN: https://ssrn.com/abstract=2756124

Richard A. Leo (Contact Author)

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

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