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- Created: 12 February 2012
- Published: 12 February 2012
- Written by Dr. Marvin Zalman
The Background of the Study of Wrongful Convictions in America and a Call for Criminologists to Develop Better Theories of Why Wrongful Convictions Occur
Richard A. Leo
Rethinking the Study of Miscarriages of Justice: Developing a Criminology of Wrongful Conviction.
Journal of Contemporary Criminal Justice 21(3):201-223 (2005)
Leo's essay is a good introduction to wrongful conviction studies, which began in 1932 with Convicting the Innocent, a book by Yale law professor Edward Borchard. Described as a “big picture” book, it included 65 wrongful conviction vignettes, and a chapter on factors related to these miscarriages of justice. Borchard’s pioneering research established that factually innocent people are convicted. Similar books published in later decades showed criminal justice practice did not uphold the legal ideal that it is better that a guilty person go free than an innocent one be convicted. The “big picture” books had little impact on public consciousness of wrongful convictions.
A 1987 article by Bedau and Radelet, identifying 350 wrongful convictions in potentially capital cases since 1900, raised the legal community’s concern. Nevertheless, it was the advent of DNA testing, using DNA to exonerate prisoners by the newly formed Innocence Project, and a federal report issued in 1996 calling attention to this trend, that made actual innocence a recognizable policy issue.
Leo’s main point was a call to arms to criminologists to become involved in innocence research. “Big picture” books identified the problem, but did not provide a theoretical understanding. Neither did books about individual wrongful conviction cases—true-crime books—which provided thick descriptions but were not useful for policy research. In contrast, psychological research into errors of justice caused by eyewitness misidentification and child suggestibility generated thousands of published research articles since the mid-1970s. Countless experiments produced theoretical understanding of these processes, and specific procedural reforms for the conduct of lineups and the questioning of children that reduced identification errors.
Leo called for criminologists to study the root causes of and to build theories about wrongful convictions. The big picture and true crime books made simplistic assumptions that the various factors associated with wrongful convictions are direct causes, “and once they are identified, we will know how and why the problem of wrongful conviction occurs.” According to Leo, the task confronting criminologists is to study why these factors occur—to find their root causes.
Two studies were singled out for special praise. A case study by William Lofquist, exploring the organizational structure of a police department, was seen as an avenue to better understanding police investigation. A quantitative study by Talia Harmon that compared matched samples of death row exonerees and executed defendants, empirically identified factors related to wrongful convictions.
In conclusion, Leo noted that a critical mass of social scientists has emerged, and the time had come for criminologists to develop the study of the critical justice policy area of miscarriages into a thriving field of its own.