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December 6, 2011

"Innocence Commissions and the Future of Post-Conviction Review"

The title of this post is the title of this newly revised paper on SSRN authored by Professor David Wolitz. Here is the abstract:

In the fall of 2006, North Carolina became the first state to establish an innocence commission — a state institution with the power to review and investigate individual post-conviction claims of actual innocence.  And on February 17, 2010, after spending seventeen years in prison for a murder he did not commit, Greg Taylor became the first person exonerated through the innocence commission process.  This article argues that the innocence commission model pioneered by North Carolina has proven itself to be a major institutional improvement over conventional post-conviction review.

The article explains why existing court-based procedures are inadequate to address collateral claims of actual innocence and why innocence commissions, due to their independent investigatory powers, are better suited to reviewing such claims. While critics on the Right claim that additional review mechanisms are unnecessary or too costly, and critics on the Left continue to push for a court-based right to innocence review, the commission model offers a compromise that fairly balances the values of both finality and accuracy in the criminal justice system.

At the same time, I argue, the North Carolina commission suffers from the tension – inherent in all expert agencies — between efficiency and discretion, on the one hand, and procedural fairness and accountability, on the other. I offer several suggestions for reform of commission procedures to help insure that none of these values is overwhelmed by the others.  Overall, the record of the North Carolina commission demonstrates that the commission approach can provide justice where the traditional court system has failed, and, with the reforms I suggest here, it ought to be a model for states across the country.

December 6, 2011 at 10:16 AM | Permalink


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I've come to believe reformers make better use of their time attempting to improve those "inadequate" court-based procedures than pursuing the innocence commission strategy.

Much like civilian review boards for police, innocence commissions sound good but haven't functioned well because they're always hamstrung in the creation by special interests who oppose their fundamental mission. Good idea in theory, perhaps, but in practice almost all postconviction relief happens via habeas writs in traditional courts, and that will continue to be the case for a long time. IMO it's more effective to focus time and resources on improving those processes to better accommodate actual-innocence claims than creating a new layer of government bureaucracy that's unlikely to work well.

Posted by: Gritsforbreakfast | Dec 6, 2011 11:12:53 AM

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