Bandes on Framing Wrongful Convictions

Visiting Professor of Law Susan Bandes has posted a paper on SSRN entitled "After Innocence: Framing Wrongful Convictions." The abstract is below and you can download the whole paper here.

After Innocence: Framing Wrongful Convictions

SUSAN A. BANDES
DePaul University - College of Law; University of Chicago Law School
Utah Law Review, 2008

Abstract:    
Concern over wrongful convictions has led to an innocence movement that has managed to bridge ideological divides, rouse the public to action, and achieve unprecedented success in reforming the operation of the death penalty. This movement is now at a critical juncture. Exonerations based on DNA evidence are beginning to decline, and the public's attention is beginning to stray. Yet there is an enormous amount of work left to be done. In this short essay, written as part of the symposium Beyond Biology: Wrongful Convictions in a Post-DNA World, I explore the debate over the content of the category wrongful convictions. The definition of persons who should be considered wrongfully convicted is hotly contested by both supporters and opponents of capital punishment. Delineating the category also raises another highly controversial issue: how to characterize the governmental conduct that leads to these miscarriages of justice.

I consider whether it remains helpful to organize our thinking about injustice in capital cases around the notion of wrongful convictions. Does framing the problem in this way help or hinder the larger debate about what is wrong with the death penalty and how to fix it? I suggest that though we should learn from the successes of the wrongful convictions movement, we need to look beyond innocence and find ways to evoke outrage at a broader spectrum of injustice. I also explore a conundrum about framing police and prosecutorial misconduct. Although it is sometimes essential to identify and condemn intentional misconduct, the focus on malice and intent can be ineffective and even counterproductive.

The challenge is to find ways to communicate concern for more than just the innocent, and to communicate the dangers of systemic governmental misconduct that defies traditional definitions of blameworthiness. As we consider the evolving shape of the death penalty reform effort, we should explore why certain ways of framing injustice have so much power.