Miscarriages of justice are not like other criminal justice controversies. Typically, people oppose miscarriages of justice; however, sometimes folks will promote miscarriages of justice for other purposes. When people agree that miscarriages of justice have occurred, they are almost universally condemned. However, controversies may arise over whether or not a miscarriage of justice has occurred. Making matters more complicated are issues of intent. Some of the miscarriages are unintentional or accidental. They are committed by fallible human beings who are simply attempting to do their jobs as best they can. Other miscarriages are intentional and venal. People commit them to further personal or professional agendas. This entry examines miscarriages of justice in the United States, what they are, what causes them, and possible remedies.
III. Key Events
IV. Reasons and Remedies
A miscarriage of justice has been defined as “a grossly unfair outcome in a judicial proceeding, as when a defendant is convicted despite a lack of evidence on an essential element of the crime” (Black’s Law Dictionary 2000, 811). This definition focuses narrowly on wrongful convictions, which have received the most interest of scholars writing in this area but are only one type of miscarriage of justice. Miscarriages of justice also include wrongful arrests, wrongful charges or indictments, and wrongful sentences. They may include harassment by a law enforcement officer, an attorney failing to file a timely appeal, or correctional officials failing to release an inmate in a timely fashion once his or her sentence has expired. As such, the police and other law enforcement officials, defense attorneys, prosecutors, judges, and jurors as well as correctional officials commit miscarriages of justice.
Two general types of miscarriages of justice are “errors of due process” and “errors of impunity” (Forst 2004). Errors of due process involve “unwarranted harassment, detention or conviction, or excessive sanctioning of people suspected of crime” (Forst 2004, 10). “Errors of impunity” involve “a lapse of justice that allows a culpable offender to remain at large” (Forst 2004, 23) or, in some other way, to escape justice. Errors of due process can cause errors of impunity. In other words, if a person is arrested, convicted, and imprisoned for a crime that he or she did not commit, there is a good chance that the real offender will remain free to prey on other people. On the other hand, there is also a chance that the real offender will be arrested, convicted, and imprisoned for another crime. Although either type of error can undermine the integrity and legitimacy of the criminal justice process, (Forst 2004, 212–219) the bulk of the scholarship to date has focused on errors of due process.
Until recently, the subject of miscarriages of justice—whether errors of due process or errors of impunity—had not received much scholarly attention from social scientists and especially criminologists. In fact, prior to Yale Law Professor Edwin Borchard’s pioneering book Convicting the Innocent (1932), conventional wisdom suggested that innocent people were almost never wrongfully convicted. That such injustices probably occurred more frequently than most people thought was criminal justice’s little secret.
Much of the newer miscarriages of justice research has focused on capital punishment. A principal reason is that capital cases generally receive more scrutiny than other felony cases because of the punishment’s finality and the requirement that an appellate court review capital convictions and/or sentences. It is likely, however, that the miscarriages in capital cases that have been revealed represent only the tip of the proverbial iceberg of all miscarriages of justice, either in capital cases or in all criminal cases. The problem is that there is no official record of miscarriages of justice, so it is impossible to determine precisely how many there are and how often they occur.
The public is no longer so sanguine about the infallibility of the justice system. For example, in a 2009 Gallup poll of adults nationwide, 59 percent of respondents thought, “in the past five years, a person was executed who was, in fact, innocent of the crime with which he or she was charged” (Gallup 2009). That was down somewhat from 73 percent who so believed in 2003, according to Gallup. A Harris poll conducted in 2008 similarly found that up to 95 percent of adults nationwide thought that innocent people sometimes were wrongly convicted of murder—a statistic that has held remarkably steady since at least 1999 (Polling Report 2009).
This remarkable turnaround in the public’s belief about miscarriages of justice was the result of a combination of events. The most important arguably was the advent of DNA profiling. DNA evidence is now used to link or eliminate identified suspects to a crime, identify “cold hits” where a sample from a crime scene is matched against numerous cases in a DNA database and a positive match is made and to clear convicted rapists and murderers years after they began serving their sentences. A second important and related development was the establishment in 1992 of the Innocence Project by Law Professors Barry Scheck and Peter Neufeld at the Benjamin N. Cardozo School of Law in New York City. The project uses law students in a clinical law program to provide pro bono legal services to inmates who are challenging their convictions based on DNA evidence. The student lawyers are supervised by practicing attorneys. The project has represented or assisted more than 100 cases in the United States, including several death penalty cases, where convictions have been reversed or overturned. Today, there is a national network of more than 40 Innocence Projects throughout the United States. Scheck and his colleagues, underscoring the importance of DNA evidence, found that “of the first eighteen thousand results [of DNA tests] at the FBI and other crime laboratories, at least five thousand prime suspects were excluded before their cases were tried” (Scheck 2001, xx). That is, more than 25 percent of the prime suspects were wrongly accused.
Another development was additional revelations that people convicted of capital crimes and sentenced to die were actually innocent. In Illinois, investigations by Northwestern University journalism professor David Protess and his students provided proof of innocence. In 1998, Northwestern University hosted the first National Conference on Wrongful Convictions and the Death Penalty. Attending were 35 former death row inmates. Some of them told their stories about almost being executed and how they had been wrongly convicted. In 1999, the Chicago Tribune published two major series. The first series documented prosecutor misconduct throughout the United States; the second series examined problems with Illinois’s capital punishment system that contributed to such a large percentage of its death row inmates being exonerated because of their innocence. Based largely on the series by the Chicago Tribune and the fact that Illinois had released 13 condemned inmates from death row since 1977 while executing 12, Republican Governor George Ryan, himself a proponent of the death penalty, imposed a moratorium on capital punishment in Illinois in January 2000. In May 2000, Governor Ryan charged a special commission he created with producing a comprehensive report on the administration of capital punishment in Illinois. In April 2002, Governor Ryan received the completed report, which contained 85 recommendations for changes in the Illinois capital punishment system. Declaring the Illinois capital punishment system to be broken, in January 2003, just days before he was to leave office, Governor Ryan pardoned four death-row inmates and commuted the sentences, mostly to life in prison without possibility of parole, of the remaining 167 inmates on Illinois’s death row. Between 1973 and November 2006, a total of 123 people in 25 states have been released from death row with evidence of their innocence (Death Penalty Information Center 2006). Some probably innocent death row inmates were not as lucky and have been executed (Bohm 2003).
Reasons and Remedies
The proximate reasons for these miscarriages of justice are now well documented. They include shoddy investigation and misconduct by the police; eyewitness misidentification, perjury by prosecution witnesses, false confessions, guilty pleas by innocent defendants, prosecutor misconduct, judicial misconduct or error, bad defense lawyers, and jury problems.
Remedies to miscarriages of justice are also well known. Among the recommendations are the following: provide good attorneys, punish the misconduct of defense attorneys, improve police investigations, interrogations, and the handling of evidence, improve eyewitness identification techniques and procedures, improve the work and credibility of crime lab technicians, require DNA testing, set rigorous standards for jailhouse snitches/informants, improve police training, punish police misconduct, guide prosecutors’ charging decisions, improve disclosure requirements, punish prosecutor misconduct, provide better training and certification of trial judges in capital cases, give trial judges veto power in capital cases (when juries impose death sentences), eliminate time limits and other constraints on claims of actual innocence, increase the resources and scope of innocence projects, collect relevant data, establish innocence commissions, and provide assistance and indemnity.
The integrity and legitimacy of the criminal justice process depends largely on efforts to eliminate injustice. Miscarriages of justice threaten the very foundation of society. When criminal suspects and defendants are not treated fairly and accorded the rights guaranteed to them by the U.S. Constitution, the legitimacy and authority of the state are called into question. Citizens who lose faith in the state’s ability to dispense justice are likely to employ vigilante justice, resulting in social chaos.
To move analysis of this subject forward, the federal and state governments should be required by statute to compile an annual miscarriage of justice registry, listing all known cases of miscarriages of justice and their causes. Such a registry would not only provide an indication of the problem’s magnitude but it would also be an excellent resource to use in evaluating criminal justice administration. It could reveal what works well and what is in need of change. Also needed is theorizing and investigation of the more fundamental causes of miscarriages of justice as well as the political will, organizational commitment, and resources to implement and monitor the remedies.
Robert M. Bohm
- Black’s Law Dictionary, 7th ed. St. Paul, MN: West Group, 2000.
- Bohm, R. M., Deathquest II: An Introduction to the Theory and Practice of Capital Punishment in the United States. Cincinnati, OH: Anderson, 2003.
- Cohen, Stanley, The Wrong Men: America’s Epidemic of Wrongful Death Row Convictions. New York: Carroll & Graf, 2003.
- Death Penalty Information Center, “Innocence.” 2006. http://www.deathpenaltyinfo.org/innocence
- Forst, Brian, Errors of Justice: Nature, Sources, and Remedies. New York: Cambridge University Press, 2004.
- Gallup, “In U.S., Two-Thirds Continue to Support Death Penalty.” October 13, 2009. http://www.gallup.com/poll/123638/in-u.s.-two-thirds-continue-support-death-penalty.aspx
- Lytle, Leslie, Execution’s Doorstep: True Stories of the Innocent and Near Damned. Boston: Northeastern University Press, 2008.
- Polling Report, “Are you in favor of the death penalty for a person convicted of murder?” Gallup poll, Oct. 1–4, 2009. http://www.pollingreport.com/crime.htm
- Robinson, Paul H., and Michael T. Cahill, Law Without Justice: Why Criminal Law Doesn’t Give People What They Deserve. New York: Oxford University Press, 2006.
- Scheck, Barry, P. Neufeld, and J. Dwyer, Actual Innocence: When Justice Goes Wrong and How to Make It Right. New York: Signet, 2001.
- Westervelt, Saundra D., and John A. Humphrey, eds., Wrongly Convicted: Perspectives on Failed Justice. Newark, NJ: Rutgers University Press, 2001.