Moving Down the Wedge of Injustice: A Proposal for a Third Generation of Wrongful Convictions Scholarship and Advocacy

Abstract

The Innocence Project and its allies in the wrongful convictions community have much to be proud of. In a first wave of case-specific advocacy, the innocence movement has freed more than 150 innocent people from prison and focused public attention on the prevalence of wrongful convictions. More recently, the movement has opened a second front in the battle against wrongful convictions, marshaling information culled from the many known exonerations to publicize the factors that lead to flawed evidence and wrongful convictions. While acknowledging and applauding these achievements, this Article argues that the time has come to open a crucial third front in the battle against wrongful convictions, one that shifts attention from post-conviction strategies and evidence-related flaws in our system of criminal justice to broader questions about the structure and administration of criminal justice. To make the case for this proposal, the Article raises and discusses a number of candidates for further study and advocacy, including indigent defense funding, plea bargaining practices, and jury instructions. The bulk of the Article, however, discusses prosecutorial docket control, a defining feature of South Carolina criminal practice that is, in many ways, the exemplar of the kind of broad, systemic, justice-warping practice upon which the wrongful convictions movement might appropriately focus its energies.