October 12, 2007

"Innocentrism": Changing the face of American law?

Is DNA testing, and the resultant exoneration of hundreds of innocent prisoners, dramatically changing the focus of criminal law in the United States? And if so, is that a good thing?

That's the topic of an intriguing new article by University of Utah law professor Daniel S. Medwed. The article, aptly titled "Innocentrism," is available online through the Social Science Research Network (SSRN). Here is the abstract:

American criminal law is undergoing a transformation due to the increasing centrality of issues related to actual innocence in courtrooms, classrooms, and newsrooms. This phenomenon, which I will term “innocentrism," derives mainly from the emergence of DNA testing and the subsequent use of that technology to exonerate innocent prisoners. Indeed, since 1989, over 200 prisoners have been freed as a result of post-conviction DNA testing, their innocence proven beyond a shadow of a doubt. Dozens of nonprofit innocence projects have sprung up to investigate and litigate claims of innocence. Legislators have responded favorably to these developments as well; over forty state legislatures have passed statutes to facilitate inmate access to biological evidence that is suitable for post-conviction DNA testing. A number of states have even gone beyond the realm of DNA and implemented legislation designed to address the root causes of wrongful convictions, for instance, by modifying the manner in which eyewitness identification procedures are conducted. The academic community, in turn, has gravitated toward the topic of innocence with rising ardor, as evidenced by the fact that no fewer than eight major law reviews have published symposia on topics concerning wrongful convictions since 2002. It may not be farfetched to suggest, as others have done, that the effort to free the innocent has become the civil rights movement of the twenty-first century.

Many observers, including this author, have praised the evolving focus on actual innocence in the criminal law discourse and advocated the passage of legislative reforms geared toward eradicating or at least curtailing the factors that contribute to wrongful convictions. Several prominent commentators, however, have reacted less sympathetically and have mounted a series of attacks on the innocence movement, both from the right and the left. In this Essay, I aim to respond to those skeptical of (and antagonistic toward) the emerging centrality of innocence-based arguments in criminal law: in effect, to critique the critics. In doing so, I hope to demonstrate that innocentrism, while far from a panacea to the criminal justice system's many ills, is a positive occurrence and one that ultimately can complement, rather than replace, the emphasis on substantive and procedural rights that for good reason rests at the core of American criminal law.
Thanks to inveterate blog subscriber Kirk Witherspoon for alerting me to this article.