Can We Protect the Innocent without Freeing the Guilty? Thoughts on Innocence Reforms That Avoid Harmful Tradeoffs

Abstract

It is fundamentally important that the criminal justice system accurately separate the guilty from the innocent. But many recent reform measures from the innocent movement rest on shaky ground. Protecting against wrongful convictions can create tradeoffs. If poorly crafted, a reform measure might not only prevent convicting innocent persons but also guilty persons, allowing dangerous criminals to avoid incarceration and continue to victimize innocent persons. From a public policy perspective, these tradeoffs create concern that reform measures may be cures worse than the disease.

With this caution in mind, it is possible to craft reforms that help to protect the innocent without allowing the escape of the guilty. A common theme underlying many of these proposals is that they reorient the criminal justice system away from adjudicating procedural issues and toward considering substantive issues – i.e., issues of guilt or innocence. The truly innocent will benefit in a system that values substance over procedure. We ought to give serious consideration to measures that move the criminal justice system in that direction.

Keywords: innocence, wrongful convictions, tradeoffs, false confessions, exclusionary rule