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December 18, 2010

"Innocence Unmodified"

The title of this post is the title of this new scholarship from Emily Hughes available via SSRN. Here is the abstract:

The Innocence Movement has unwittingly participated in the construction of a binary between “actual” and “legal” innocence.  Because the Innocence Movement has focused on defendants who did not commit the actions underlying their convictions, courts, lawyers, and the larger society have come to believe that a person is wrongly convicted of a crime only if the person is “actually” innocent.  This perception overlooks the fact that a person can be wrongly convicted if their constitutional rights were violated in the process of obtaining the conviction.  As such, the Innocence Movement devalues “legal” innocence and the constitutional values that underlie a broader conception of innocence.

In order to affirm the importance of those constitutional values, this Article argues for the need to reclaim an understanding of innocence unmodified by qualifiers such as “actual” or “legal.”  Part I explains how the concept of “actual” innocence has played a pivotal role in the development of the Innocence Movement.  Part II examines innocence unmodified in the context of trials.  It explains that one reason to protect innocence unmodified is because the Supreme Court has not yet held that “actual” innocence alone is enough to reverse a wrongful conviction; constitutional claims underlying an “actual” innocence claim, working together, are necessary to achieve justice.  Part III explores innocence unmodified in the context of guilty pleas.  It reveals the degree to which the Court has itself reduced innocence to a binary — prioritizing “actual” innocence over fundamental constitutional protections for all people, including people who might be wrongly convicted if the courts do not safeguard their constitutional rights.  The Article concludes that a modified conception of innocence dilutes the constitutional core that protects us all — innocent or guilty alike.

December 18, 2010 at 04:33 PM | Permalink


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I see the innocence movement focusing on where they can actually make some ground. It is a far graver injustice to convict someone who is ethically blameless for even a minor crime than it is to accidentally convict someone for say 1st degree murder when they actually only committed 2nd degree murder. In many cases the trying to overturn such a conviction would be purely a judgment call and the people reviewing such cases would have a judgment different from those trying to overturn it.

Constitutional error in trials is an entirely different sort of injustice than either of the above situations and it does not surprise me that advocates do not approach this in a systemic manner. For one thing, convincing the public that any particular practice is in fact a constitutional error is going to be much harder than demonstrating that ethically blameless individuals have been convicted (regardless of whether the trial was free from error or not).

Posted by: Soronel Haetir | Dec 18, 2010 5:33:49 PM

That is a valid point, Soronel, but is the Constitution the surpreme law of the land or not? Throwing the Constitution under the bus opens the door to indignant contemmpt for the law. Compare the comments on this tagger that got killed.

Man killed on freeway was spray-painting graffiti

How relevant is the Constitution?

Posted by: George | Dec 18, 2010 9:15:24 PM


The point remains, however, that it is far easier to convince the populace that finding and releasing folks who did not in fact commit whatever crime they stand convicted of is a worthy undertaking than it is to convince people that a particular offender deserved some particular argument be made to the jury.

Many things that advocates now try to claim as error of constitutional significance are incredibly nit picky, and it does not surprise me that the innocence movement as a whole has not embraced them, even if defense attorneys have in this case or that.

Posted by: Soronel Haetir | Dec 18, 2010 11:17:14 PM

I see it a bit differently. The innocence "movement" simply is not about Fourth Amendment rights. It isn't about First Amendment or Second Amendment rights, either. No problem. You pick your battles.

Instead, since the "movement" focuses on 5/6/14th amendment issues, it is easy to couch them in terms of "actual" innocence. This sells nicely to the public, but it is really saying that there is a constitutional right to avoid conviction for a crime one did not commit regardless of the procedures followed at trial. Which, to many, is a debatable position.

What annoys people about the "movement" is that it is of little help to actual criminal defendants. Indeed, if anything it helps the odd condemned person. Any jurisprudence to come from it only helps people ON death row. Likewise, it probably does not have much of an impact on society in general because the doctrinal outgrowths of the movement do not actually chance most peoples' interactions with the police. Whereas most changes in, say, confrontation clause, or "reasonable expectation of privacy" jurisprudence have a lasting impact on the way individuals interact with the state.

Posted by: S.cotus | Dec 19, 2010 12:31:07 AM


I was trying to point out how the climate is agreeable with you. In other words, the commentators can comment that they are glad he was hit by a car and too bad the other one wasn't hit too because they were guilty of tagging. Only a very few even consider due process and proportionate punishment. This is in agreement with your argument because that is what we are up against. Not only are they not innocent (according to the police and the press) but they are guilty and deserve the death penalty merely for spraying paint. How much chance does someone on death row have? Kill 'em all and let God sort 'em out. There is no room for due process and the Constitution in that black hole.

Posted by: George | Dec 19, 2010 2:10:39 AM

It is not like there aren't other organizations with lawyers and staff that address other problems with convictions, particularly capital convictions. I agree that often a problematic conviction (or more so sometimes a death sentence) is not a matter of being factually guilty, but legally not guilty (or arbitrarily given the death penalty). But, the Innocence Project is not focused on all types of legal innocence.

Also, constitutionally and as a matter of pragmatic reality, there is a better chance of a sentence being overturned, even after a long time and the usual appeals running out, when actual innocence is in place. Finally, I think there is a good argument that actual factual innocence can be independently a liberty interest concern above and beyond various constitutional rights such as counsel and so on. It's a matter of degree, yes, since all rights are important to some degree, but there is a reason to provide more concern for it.

Posted by: Joe | Dec 19, 2010 5:47:19 PM

Yale indoctrinated. Death penalty abolitionist extremist. Loves the criminal. No mention of the dreaded lawyer bad word, the V word. This is meaningless drivel.

If one takes it with any seriousness, it ir funny and ironic. The lawyer makes it impossible to understand the law, say the difference between second degree murder and manslaughter. Then uses this misunderstanding to justify getting a murderer off for the sake of all our rights. It is not for the sake of all our rights, since it puts an ultra-violent predator back in circulation to commit hundreds of major crimes each year alive.

Murder: Second degree

Second-degree murder is ordinarily defined as 1) an intentional killing that is not premeditated or planned, nor committed in a reasonable "heat of passion" or 2) a killing caused by dangerous conduct and the offender's obvious lack of concern for human life.


The unlawful killing of a human being without malice or premeditation, either express or implied; distinguished from murder, which requires malicious intent.

What the ...?

What she is not saying. She is a weasel looking for loopholes to keep the commodified murderers alive. The murderer generates fees. The victim generates nothing for the lawyer and may rot. So this parallel universe, Lost Island, Twilight Zone, constructive lawyer reality is invented whole cloth. The murderer freed on a technicality should be seen as legally innocent, which should have the same weight as factually innocent. She does not care that this client will victimize thousands of people because her weasel lawyer duty has been discharged. She squeezed through the loophole, which carries the same moral validity as a finding of having prosecuted the wrong person.

Here is an alternative to her lawyer Twilight Zone nonsense. End all self-dealt prosecutorial and judge immunities. When their carelessness deviates from professional standards of due care, and it harms the defendant in a criminal trial, put them through the wringer, and make them pay to the last button on the last shirt, and make this government pay to the last pail in the last firestation.

End the awful immunity of the legislature. Let it get sued for consumer fraud when it puts out laws that have to be interpreted by a lawyer to be understood. Let it pay to the last penny, when it uses religiously derived phrases, such as intent, malice, and any other catechism copied garbage concept. The church says, this is our faith, so we cannot criticize them. The lawyer puts people to death, and transfers $billions, mostly to other lawyers. Its practice must be empirically validated, including its horribly written, horrible laws. It must be legislative malpractice. These malfeasors must be made to pay.

Posted by: Supremacy Claus | Dec 19, 2010 8:51:00 PM

People who believe in prayer, should pray that the author gets attacked by one of her death row clients, and taken out of circulation. To deter the author and her ilk. She can then argue in favor of constructive legal innocence with greater authority. No matter how fancy this weasel gets to squeeze her client through her loopholes, she will learn the difference between legal and factual innocence. The clients is still a bad guy, with no morals, and violent impulses. One good punch from her client is worth hours of arguing with this extremist ideologue.

Posted by: Supremacy Claus | Dec 19, 2010 11:07:58 PM

For the non-lawyer, malice does not mean, anger, hate, or vengeance. It means knowledge. The single biggest factor in solving murder, motive, is irrelevant to the lawyer. It is irrelevant legally.

Posted by: Supremacy Claus | Dec 20, 2010 11:54:41 AM

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