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October 30, 2004

The (incomplete) innocence revolution

One reason I do not think anyone can confidently predict the post-Blakely future of sentencing reform is because criminal justice evolutions are often unpredictable. Obviously, the Blakely decision itself confirms this assertion in the arena of non-capital sentencing. Another unpredictable story in recent times has been the way exonerations of innocent persons from death row has catalyzed a sea-change in the politics and practices of capital punishment. (I wrote a bit about these developments a few years ago here as part of this symposium I helped organize at Ohio State on "Addressing Capital Punishment Through Statutory Reform.")

As detailed here, the Death Penalty Information Center has been a leading voice in the innocence conversation through major reports and comprehensive web coverage. And this conversation will be enriched next week at this symposium hosted by Northwestern's Journal of Criminal Law and Criminology entitled "Innocence in Capital Sentencing." The event will, in the organizers' words, "bring together a talented and distinguished group of professors and practitioners to discuss the impacts of wrongful convictions on the capital punishment debate."

I was quite intrigued to see in this account of the JCLC event that Professors Carol Steiker and Jordan Steiker plan to discuss how "focus on innocence draws attention to or deflects attention from important, non-innocence related questions surrounding our criminal justice system." I have long been concerned that heightened concern about innocent defendants on death row has been coupled with heightened disregard of guilty defendants on death row.

Moreover, a powerful article from the November San Francisco magazine about innocent convictees in California available here leads me now to worry that heightened concern about innocent defendants on death row has been coupled with heightened disregard of innocent defendants who are not on death row. The article highlights the exoneration of more than 200 Californians over the past 15 years, most of whom were serving lengthy prison terms, and notes the "surprisingly little fanfare" over these developments. The article provocatively suggests that, because of the extra attention and safeguards in the capital sentencing system, "an innocent Californian convicted of murder is almost better off being sentenced to death than to life in prison — at least the case will get a long, hard look."

The innocence revolution is not technically a sentencing story, but the impact it has had on the death penalty dialogue has obviously been profound. In addition, the San Francisco magazine article links these issues to Three Strikes developments in California. But I am still unsure whether innocence concerns draw a healthy form of attention to, or instead distracts from, pressing issues of sentencing law and policy.

October 30, 2004 at 01:32 AM | Permalink


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