Measuring Innocence: How to Think About the Rate of Wrongful Convictions

New Criminal Law Review, Volume 24, Number 4, Fall/October 2021

62 Pages Posted: 30 Aug 2021

See all articles by Marvin Zalman

Marvin Zalman

Wayne State University

Robert Norris

George Mason University

Date Written: August 9, 2021

Abstract

What is the rate of wrongful conviction? This question may be implicit in Blackstone’s ratio that “It is better that ten guilty persons escape than that one innocent suffer.” Scholarship designed to provide an empirical answer, however, emerged only with the rise of the “innocence movement” in the United States. This article does not provide another study estimating the rate of wrongful felony convictions either for a specified sample, such as death sentences within a specified time period, or for an entire jurisdiction. Instead, we evaluate the “rate question” itself and assess its importance to innocence scholarship and action. We first trace the question’s intellectual lineage, and its historical and ideological roots among innocence believers and innocence skeptics. We then describe and evaluate all or most of the published studies attempting to estimate the wrongful conviction rate. Next, we discuss a reoccurring limitation of this published work, namely, its failure to account for or its unsubstantiated assumptions about guilty pleas and misdemeanor convictions among innocent defendants. Finally, we question the continued importance of the rate question in light of the modern innocence movement and its growing accomplishments.

Keywords: wrongful conviction, rate, innocence believers, innocence skeptics

Suggested Citation

Zalman, Marvin and Norris, Robert J., Measuring Innocence: How to Think About the Rate of Wrongful Convictions (August 9, 2021). New Criminal Law Review, Volume 24, Number 4, Fall/October 2021, Available at SSRN: https://ssrn.com/abstract=3901974 or http://dx.doi.org/10.2139/ssrn.3901974

Marvin Zalman (Contact Author)

Wayne State University ( email )

Detroit, MI 48202
United States

Robert J. Norris

George Mason University ( email )

4400 University Drive
Fairfax, VA 22030
United States
703-993-8315 (Phone)

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