CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, July 5, 2018

Roberts on The Innocence Movement and Misdemeanors

Roberts jennyJenny Roberts (American University - Washington College of Law) has posted The Innocence Movement and Misdemeanors (Boston University Law Review, Vol. 98, No. 101, 2018) on SSRN. Here is the abstract:
 
In recent years, the Innocent Movement has begun to focus its attention on wrongful misdemeanor convictions as a systemic problem. This Article analyzes eighty-five documented misdemeanor exonerations and concludes that innocence has been demonstrated primarily in two ways: laboratory tests of alleged unlawful drugs that reveal “no controlled substance” despite the individual having pled guilty to misdemeanor drug possession; and police body camera or citizen videos that surface after a misdemeanor conviction to contradict the factual basis for that conviction. Strategic use of these relatively definitive methods of revealing wrongful misdemeanor convictions can call attention to the flaws in misdemeanor prosecutions and help to improve accuracy in misdemeanor cases, just as the Innocence Movement has used DNA evidence to do so in the felony context. 

This Article also addresses the Innocence Movement’s nascent interest in misdemeanors as a normative matter.
The hope is that some innocent people wrongly convicted of misdemeanors will be exonerated, which will allow the Movement to highlight systemic causes of such errors in reform efforts that will ultimately benefit all individuals facing misdemeanor charges. For example, the Harris County, Texas mass misdemeanor drug exonerations have highlighted how bail is used to extract guilty pleas. On the other hand, an innocentric focus on misdemeanors could overtake an existing, yet still developing, narrative of the disproportionate and unfair direct and collateral consequences of misdemeanor convictions. These consequences can last a lifetime and restrict an individual’s access to employment, housing, and education. Defining the “wrong” in “wrongful misdemeanor conviction” as the conviction of an innocent person ignores the “wrong” of low-level public order offenses that result in permanent criminal records and wildly disproportionate consequences for individuals and their families. This latter narrative has fueled recent decriminalization, sealing and expungement, and other reforms to mitigate the disproportionate consequences of a misdemeanor record. The Innocence Movement should take care to avoid undermining these broader questions about whether the harsh punishments attached to misdemeanors are ever appropriate, regardless of guilt or innocence.

http://lawprofessors.typepad.com/crimprof_blog/2018/07/roberts-on-the-innocence-movement-and-misdemeanors.html

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