II. The Rise of the Innocence Movement
Prior to 1990, wrongful convictions generated only slight interest. The famous writer of the “Perry Mason” legal thrillers, Erle Stanley Gardner, created an informal “court of last resort” in the 1950s to investigate and correct miscarriages of justice. For the most part, however, the public, as well as most judges and criminal lawyers, was convinced that very few innocent people were ever convicted. When the Supreme Court expanded defendants’ trial rights in the 1960s, for example, the reason given was not to make the criminal justice system more accurate in determining guilt and innocence but to prevent government oppression.
Some pre-1990 scholarship did raise issues of trial accuracy. First, a group of cognitive psychologists began to conduct eyewitness identification experiments in the 1970s. By 1990, they had amassed a wealth of information showing that eyewitnesses were often mistaken and that lineup and identification procedures could significantly increase or decrease eyewitness accuracy. Next, a survey of criminal justice officials by criminologists C. Ronald Huff, Arye Rattner, and Edward Sagarin in the 1980s estimated that thousands of wrongful convictions occurred every year (Huff, Rattner, & Sagarin, 1996). Finally, philosopher Hugo Adam Bedau and sociologist Michael Radelet published a survey in a prestigious law journal in 1988 asserting that 350 innocent persons were convicted of capital and potentially capital crimes in the 20th century and that 23 were executed. Although a handful of these 350 might have been factually guilty, the study’s overall correctness raised awareness in the legal community that an innocent person could be executed. This scholarship did not, despite occasional news stories about wrongful convictions, create widespread concern about miscarriages of justice.
It was DNA testing, used to prove guilt with near certainty and to absolutely exclude suspects or defendants, that caused a sea change in attitudes about wrongful convictions. Previously, blood testing based on group types and other blood factors could not exclude suspects whose blood factors matched the crime sample; even though a large percentage of the population also shared those factors, prosecutors placed these “matches” in evidence. In forensic DNA testing, 13 loci (sites) in a suspect’s DNA strand that vary among people are analyzed to create a distinct DNA profile (or DNA fingerprint). The profile is compared with that of the same 13 loci in the biological sample linked to the crime (e.g., semen or blood deposited during a rape or assault). If the profiles match, based on population genetics studies, the probability that the suspect was the source of the crime scene DNA is astronomically high. If only 1 of the loci does not match, the suspect is absolutely excluded.
The first DNA exoneration in the United States occurred in 1989 and showed how DNA transformed a confusing tale of innocence or guilt into one of absolute clarity. Gary Dotson was convicted of rape in Illinois on a teenage girl’s eyewitness identification. In fact, she made up the rape story to cover her fear and shame after consensual sex with a boyfriend. Six years later she was married, got religion, and recanted her story. The police and a judge refused to believe that the recantation was true, despite her pastor supporting her truthful state of mind and the former boyfriend admitting to the consensual sex. Dotson was released on parole by the governor of Illinois in 1985, who inconsistently said that he did not believe the recantation. Dotson was reimprisoned for a parole violation in 1987. Finally, with the support of journalists and a determined defense lawyer, a DNA test was performed on the semen in the rape kit. Dotson was absolutely cleared and formally exonerated. His case became a template for tens and then hundreds of thousands of police rape investigations, which exonerated suspects in the early stages of crime investigations. By the early 1990s, the FBI laboratory reported that one quarter of all rape kit samples from police around the country were exclusions. This meant that in thousands of cases, accusations based on eyewitness identifications were wrong.
Soon, prisoners who knew they were innocent and serving time or sitting on death row for crimes that did not happen or were committed by someone else began to petition for DNA testing. Most were denied testing because of prosecutors’ resistance based on legal technicalities. However, a sufficient number of exonerations occurred by the mid-1990s to generate significant happenings. Newspapers prominently reported DNA exonerations. In New York, two enterprising law school clinical professors, Barry Scheck and Peter Neufeld, started the first law school innocence project at Cardozo Law School to pursue cases of inmates claiming innocence. Janet Reno, then attorney general of the United States, commissioned a report highlighting the weakness of eyewitness identification. The report raised the profile of the wrongful convictions issue in criminal justice and legal circles. By the late 1990s, several powerful documentaries, such as Errol Morris’s Thin Blue Line, brought the issue to moviegoers and television audiences.
In 2001, Scheck and Neufeld, together with reporter Jim Dwyer, published Actual Innocence, recounting several of their exoneration cases in gripping detail. Each case listed a specific way in which the criminal justice system had failed. This list, along with previous studies, created catalogues of what are considered causes of wrongful convictions. Although the book was well received, the major event in 2000 that did more to put wrongful convictions on the map was Illinois Governor George Ryan’s moratorium on executions. Between 1990 and 2000, Illinois had executed 12 prisoners while 13 on death row had been exonerated and freed. This so shocked Ryan that he halted all executions and set up a commission to review capital punishment in Illinois. The commission recommended many reforms, and several were enacted. Ryan’s continuing concern with unreliable death sentences led him to commute the sentences of all 167 death row prisoners and pardon 4 on the grounds of actual innocence before he left office in 2003. This led other states to impose moratoria or to end the death penalty. Exonerations have weakened support for capital punishment and raised general public awareness about wrongful convictions.