68 Fla. L. Rev. 1569 (2016)
View the article via pdf


Criminal Law

Introduction by Lucian E. Dervan

In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system—innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should society respond to the growing number of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if so, what does this mean for capital punishment? As these and other examples demonstrate, the importance and influence of the innocence issue is boundless. As the group—representing various perspectives, disciplines, and areas of research—discussed these and other questions, it also considered the role of innocence in the criminal justice system more broadly and examined where the innocence issue might take society in the future. What follows is a collection of short essays from some of those in attendance—essays upon which society might reflect as it continues to consider the varying sides and differing answers to the issue of innocence.

My own research regarding innocence began as part of a deep analysis of another topic—the historical rise of plea bargaining in the United States. Today, more than ninety-seven percent of convictions in the federal system and approximately ninety-five percent of felony convictions in the state systems are the result of guilty pleas. Plea bargaining did not always occupy such a dominant role in America. For example, in the post-Civil War period, appellate courts regularly struck down attempts to engage in plea bargaining. According to one court from the period, plea bargaining was “hardly, if at all, distinguishable in principle from a direct sale of justice.” But plea bargaining did rise from the shadows—in the words of Supreme Court Justice Anthony Kennedy in 2012, “criminal justice today is for the most part a system of pleas, not a system of trials.”

As I proceeded with my research on plea bargaining’s rise and its mechanics, I quickly came upon plea bargaining’s innocence issue. For example, in 2002, a seventeen-year-old high-school student named Brian Banks was accused of rape. He was offered a plea bargain that carried a maximum sentence of seven years in prison, though he was assured he would actually serve much less time. The alternative was to proceed to trial and face a sentence of forty-one years to life if he lost. As might be expected, Banks took the deal. Nearly a decade after the conviction, Banks’s accuser recanted, and his conviction was reversed on March 24, 2012. Stories such as this led to much debate and contemplation about the impact of plea bargaining on defendants accused of crimes they had not committed. Were the Brian Banks of the world an anomaly?

In 1970, the Supreme Court stated that plea bargaining was constitutional. In part, this decision rested on the Court’s belief that innocent people do not plead guilty. Was the Court wrong in making that assumption? These questions led me and Dr. Vanessa Edkins to conduct a psychological study to test how likely it was that an innocent defendant might falsely confess and plead guilty in return for an offer of leniency.

In the study, participants were made to believe that they were participating in a psychological inquiry into group work versus individual work. Participants were instructed that offering assistance to someone else during the individual work portion of the test was prohibited. Nevertheless, in approximately half of the cases, the participant was approached. Unbeknownst to the participants, however, the individual asking for the assistance was actually a confederate working with us on the study.16 This study design resulted in the creation of two pools of participants: Those who had been asked for assistance and agreed (the “guilty” condition) and those who had not been asked for assistance (the “innocent” condition). Regardless of condition, all participants were then accused of cheating and offered a plea bargain. Participants were informed that if they did not plead guilty, the case would proceed to a “trial” before an Academic Review Board (ARB). If found guilty before the ARB, the punishment would be more severe than if they accepted the bargain and confessed. After weighing their options, eighty-nine percent of the participants in the “guilty” condition took the deal and pled guilty to the charges of academic misconduct. Over fifty-six percent of the participants in the “innocent” condition also took the deal and, in their cases, falsely confessed to the charges of academic misconduct. Importantly, the data from this research supports the hypothesis that plea bargaining’s innocence issue is not limited to isolated cases like Brian Banks. Rather, it appears plea bargaining’s innocence issue may be much larger than originally perceived.

The many contributing factors and potential solutions to plea bargaining’s innocence issue are too numerous to examine here. Plea bargaining, however, as illustrated above, is an important piece of the modern innocence debate and was the subject that prompted the 2015 innocence discussion. In the essays that follow, several others who participated in the roundtable share their perspectives on various nuances and facets of the issue of innocence.

Professor Richard Leo begins the collection with an analysis of the shifting meaning of “innocence” in American scholarship over the last few decades. His analysis of the concepts of “factual innocence” and “exoneration” sets the stage for the innocence issues discussed in the remaining pieces. As Professor Leo states in his essay, “How we define innocence and classify wrongful convictions matters, both empirically and normatively.”

Professor Meghan Ryan’s essay delves into the issue of the reliability of evidence and tactics during criminal proceedings and discusses the relationship between these concerns and wrongful convictions. Professor Ryan argues that those involved in the criminal justice system must “recognize and embrace their own fallibility.” Through such a recognition, she argues, a more critical examination of the system might occur.

Professor Valena Beety examines the issue of scientific evidence and argues that wrongful convictions reveal significant issues regarding a “disconnect between forensic experts and officers of the court on scientific understanding and scientific ignorance.” In particular, Professor Beety discusses several examples of unreliable scientific evidence being admitted against defendants with little challenge from the bench or bar because of a “gap in knowledge.”

Professor Gregory Gilchrist returns the discussion to plea bargaining and discusses the role of prosecutors and prosecutorial discretion in plea bargaining’s innocence issue. In an attempt to add greater transparency and accountability to the plea-bargaining machine, Professor Gilchrist proposes creating a public-review platform for the prosecutorial function. He writes, “If nothing else, exposure sustains public deliberation that itself might lead to better practices over time.”

Finally, Professor William Berry examines how we might better learn from wrongful convictions and how we might better move forward after injustice is discovered. Professor Berry offers a restorative model of punishment as a means of addressing both goals while still “hold[ing) individuals who contribute to wrongful convictions accountable.” Such a model, argues Professor Berry, will create a mechanism for the wrongfully convicted to express themselves, for those involved in the conviction to offer an apology, and for the system as a whole to learn from the mistakes that have led to innocence issues.

Through these diverse and innovative essays, the reader is able to glimpse the larger innocence discussion that occurred at the roundtable event in 2015. The ideas expressed in these pages begin a journey into an issue with many faces and many paths forward for discussion, research, and reform.