Closing International Law's Innocence Gap

66 Pages Posted: 19 Mar 2021 Last revised: 26 Jul 2021

See all articles by Brandon L. Garrett

Brandon L. Garrett

Duke University School of Law

Laurence R. Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Jayne Huckerby

Duke University School of Law

Date Written: July 25, 2021

Abstract

Over the last decade, a growing number of countries have adopted new laws and other mechanisms to address a longstanding gap in national criminal legal systems: the absence of meaningful procedures to raise post-conviction claims of factual innocence. These legal and policy reforms have responded to a global surge of exonerations, which have been facilitated by the growth of national innocence organizations that increasingly work across borders. It is striking that these developments have occurred with little help from international law. Although numerous treaties recognize extensive fair trial and appeal rights, no international instrument—in its text, interpretation or implementation—explicitly recognizes the right to assert a claim of factual innocence.

We label this omission as international law’s innocence gap. The gap appears increasingly anomalous given how foundational innocence protection has become at the national level, as well as international law’s longstanding commitment to the presumption of innocence, fair trial, and other criminal process guarantees.

We argue the time has come to close international law’s innocence gap by recognizing a new human right to assert post-trial claims of factual innocence. We discuss three national models for reviewing innocence claims and highlight international law’s limited influence on these models. Next, we review the criteria for determining whether and how to categorize a human right as “new,” analyze the right to claim innocence against those criteria, explore how to define the content of the right, and address institutional and advocacy issues. A brief conclusion highlights the implications of our proposal for efforts to reform criminal legal systems and protect human rights.

Keywords: innocence, wrongful conviction, human rights, post-conviction review, due process, fair trial, right to appeal, right to a remedy

Suggested Citation

Garrett, Brandon L. and Helfer, Laurence R. and Huckerby, Jayne, Closing International Law's Innocence Gap (July 25, 2021). Southern California Law Review, Vol. 95, 2021, Duke Law School Public Law & Legal Theory Series No. 2021-24, Available at SSRN: https://ssrn.com/abstract=3803518 or http://dx.doi.org/10.2139/ssrn.3803518

Brandon L. Garrett

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7090 (Phone)

HOME PAGE: http://www.brandonlgarrett.com/

Laurence R. Helfer (Contact Author)

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300
Denmark

HOME PAGE: http://jura.ku.dk/icourts/

Jayne Huckerby

Duke University School of Law ( email )

2122036410 (Phone)
27708-9985 (Fax)

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