The Justice Project: Protecting the Guilty in the Era of Innocence

Abstract

In the modern “Era of Innocence,” concerns about factual innocence dominate the conversation about criminal justice. Alongside the growth of law clinics and policy reforms centered on innocence, innocence-focused media has exploded in popularity over the last thirty years. Concurrent with this narrative shift, courts have curtailed appellate review of criminal convictions, except in cases of apparent or actual innocence. The focus on innocence has led to important criminal justice reforms, but too little attention has been paid to the costs of such a focus. In this paper, I outline the Era of Innocence, highlighting the ways in which factual innocence has begun to dominate the legal and cultural landscape. Then, I explain several potential downsides of innocentrism, paying particular attention to effects on the way in which people approach the criminal justice system. Using experimental psychology methods, I next present some initial data in support of these theorized downsides; I find that focusing on innocence may erode public support for criminal defense. Finally, I discuss some ways in which courts and reformers may be able to mitigate the risks of focusing on innocence.

Keywords: criminal justice, innocence, psychology, harmless error, actual innocence, due process

JEL Classification: K14