Journal/ of

10.1177/1043986205278811
Bohm INTRODUCTION
Contemporary Criminal Justice / August 2005

Miscarriages of Criminal Justice

An Introduction

ROBERT M. BOHM
University of Central Florida

T his special volume of the Journal of Contemporary Criminal Justice is

about miscarriages of criminal justice or miscarriages of justice, for
short. A miscarriage of justice has been defined as “a grossly unfair outcome
in a judicial proceeding, as when a defendant is convicted despite a lack of
evidence on an essential element of the crime” (Garner, 2000, p. 811). This
definition focuses narrowly on wrongful convictions, which have received
the most interest of scholars writing in this area, but are only one type of mis-
carriage of justice. Miscarriages of justice also include wrongful arrests,
wrongful charges or indictments, and wrongful sentences. They may include
harassment by a law enforcement officer, an attorney failing to file a timely
appeal, or correctional officials failing to release an inmate in a timely fash-
ion when his or her sentence has expired. As such, the police and other law
enforcement officials, defense attorneys, prosecutors, judges, jurors, and
correctional officials commit miscarriages of justice. Some of the miscar-
riages are unintentional or accidental. They are committed by fallible human
beings who are simply attempting to do their jobs as best they can. Other mis-
carriages are intentional and venal. People commit them to further personal
or professional agendas.
Two general types of miscarriages of justice are errors of due process and
errors of impunity (Forst, 2004). Errors of due process involve “unwarranted
harassment, detention or conviction, or excessive sanctioning of people sus-
pected of crime” (Forst, 2004, p. 10). Errors of impunity refer “to a lapse of
justice that allows a culpable offender to remain at large” (Forst, 2004, p. 23)
or, in some other way, escape justice. Errors of due process can cause errors
of impunity. In other words, if a person is arrested, convicted, and imprisoned
Journal of Contemporary Criminal Justice, Vol. 21 No. 3, August 2005 196-200
DOI: 10.1177/1043986205278811
© 2005 Sage Publications

196
 Bohm / INTRODUCTION 197

for a crime that he or she did not commit, then there is a good chance that the
real offender will remain free to prey on other people. On the other hand,
there is also a chance that the real offender will be arrested, convicted, and
imprisoned for another crime. Although either type of error can undermine
the integrity and legitimacy of the criminal justice process (Forst, 2004,
pp. 212-219), the bulk of the scholarship to date has focused on errors of due
process.
Until recently, the subject of miscarriages of justice—whether errors of
due process or errors of impunity—had not received much scholarly atten-
tion from social scientists and especially criminologists. In fact, prior to Yale
Law Professor Edwin Borchard’s pioneering book, Convicting the Innocent
(1932), conventional wisdom suggested that innocent people were almost
never wrongfully convicted. That such injustices probably occurred more
frequently than most people thought was criminal justice’s little secret. In
this volume, Richard Leo provides a comprehensive review and critique of
the popular and scholarly post-Borchard miscarriage of justice literature. He
also suggests “specific strategies for developing a more empirically diverse,
methodologically sophisticated, and theoretically oriented criminology of
wrongful conviction”.
Much of the newer miscarriages of justice research has focused on capital
punishment. A principal reason is that capital cases generally receive more
scrutiny than other felony cases because of the punishment’s finality and the
requirement that an appellate court review capital convictions and/or sen-
tences. It is likely, however, that the miscarriages in capital cases that have
been revealed represent only the tip of the proverbial iceberg of all miscar-
riages of justice, either in capital cases or in all criminal cases. The problem is
that there is no official record of miscarriages of justice, so it is impossible to
determine precisely how many and how often they occur. Nevertheless, the
public is no longer so sanguine about the infallibility of the justice system.
For example, in a 2003 Gallup poll of adults nationwide, 73% of respondents
thought “in the past five years, a person was executed who was, in fact, inno-
cent of the crime with which he or she was charged” (PollingReport.com,
2005). That was down slightly from 80% who so believed in 2000, according
to a CNN/USA Today/Gallup poll (PollingReport.com, 2005). A Newsweek
poll conducted in 2000 also found that more than 80% of adults nationwide
thought that at least some innocent people had been wrongly executed since
the death penalty was reinstated in the 1970s: 8% thought that “many” inno-
cent people had been wrongly executed; 33% thought that only “some” inno-
cent people had been wrongly executed; and 41% thought that only a “very
few” innocent people had been wrongly executed (PollingReport.com, 2005).
This remarkable turnaround in the public’s belief about miscarriages of
justice was the result of a combination of events, which are also addressed in
198 Journal of Contemporary Criminal Justice / August 2005

Leo’s article in this volume. The most important arguably was the advent of
DNA profiling. DNA evidence is now used to link or eliminate identified sus-
pects to a crime, identify “cold hits” where a sample from a crime scene is
matched against numerous cases in a DNA database and a positive match is
made, and clear convicted rapists and murderers years after they began serv-
ing their sentences. A second important and related development was the
establishment in 1992 of the Innocence Project by Law Professors Barry
Scheck and Peter Neufeld at the Benjamin N. Cardozo School of Law in New
York City (Innocence Project, 2004). The Project uses law students in a clini-
cal law program to provide pro bono legal services to inmates who are chal-
lenging their convictions based on DNA evidence. The student lawyers are
supervised by practicing attorneys. The Project has represented or assisted
more than 100 cases in the United States, including several death penalty
cases, where convictions have been reversed or overturned. Today, there is a
national network of more than 40 Innocence Projects throughout the United
States. Scheck and his colleagues, underscoring the importance of DNA evi-
dence, found that “of the first eighteen thousand results [of DNA tests] at the
FBI and other crime laboratories, at least five thousand prime suspects were
excluded before their cases were tried” (Scheck, Neufeld, & Dwyer, 2001,
p. xx); that is, more than 25% of the prime suspects were wrongly accused.
Another development was additional revelations that people convicted of
capital crimes and sentenced to die were actually innocent. In Illinois, inves-
tigations by Northwestern University Journalism Professor David Protess
and his students provided proof of innocence. In 1998, Northwestern Univer-
sity hosted the first National Conference on Wrongful Convictions and the
Death Penalty. Attending were 35 former death-row inmates. Some of them
told their stories about almost being executed and how they had been
wrongly convicted. In 1999, the Chicago Tribune published two major
series. The first series documented prosecutor misconduct throughout the
United States; the second series examined problems with Illinois’s capital
punishment system that contributed to such a large percentage of its death-
row inmates being exonerated because of their innocence. Based largely on
the series by the Chicago Tribune, and the fact that Illinois had released 13
condemned inmates from death row since 1977 while executing 12, Republi-
can Governor George Ryan, himself a proponent of the death penalty,
imposed a moratorium on capital punishment in Illinois in January 2000. In
May 2000, Governor Ryan charged a special commission he created with
producing a comprehensive report on the administration of capital punish-
ment in Illinois. In April 2002, Governor Ryan received the completed
report, which contained 85 recommendations for changes in Illinois’ capital
punishment system (Death Penalty Information Center, 2005). Declaring the
 Bohm / INTRODUCTION 199

Illinois capital punishment system to be broken, in January 2003, just days

before he was to leave office, Governor Ryan pardoned four death-row
inmates and commuted the sentences, mostly to life in prison without possi-
bility of parole, of the remaining 156 inmates on Illinois’ death row. Between
1973 and March 2005, 118 people in 25 states have been released from death
row with evidence of their innocence (Death Penalty Information Center,
2005). Some probably innocent death-row inmates were not as lucky and
have been executed (see Bohm, 2003, pp. 162-163).
The proximate reasons for these miscarriages of justice are now well docu-
mented. They include shoddy investigation and misconduct by the police,
eyewitness misidentification and perjury by prosecution witnesses, false
confessions, guilty pleas by innocent defendants, prosecutor misconduct,
judicial misconduct or error, bad defense lawyers, and jury problems. In this
volume, Myriam Denov and Kathryn Campbell show that miscarriages of
justice are not unique to the United States but also occur in Canada and for the
same reasons. What is still needed, as Richard Leo, in this volume, so ably
explains, is theorizing and investigations of the more fundamental causes of
miscarriages of justice. Heather Schoenfeld, in this volume, contributes to
that agenda by providing an integrated theory of prosecutorial misconduct
including testable hypotheses and possible research designs.
Remedies to miscarriages of justice are also well known. Among the rec-
ommendations are provide good attorneys; punish the misconduct of defense
attorneys; improve police investigations, interrogations, and the handling of
evidence; improve eyewitness identification techniques and procedures;
improve the work and credibility of crime lab technicians; require DNA test-
ing; set rigorous standards for jailhouse snitches and/or informants; improve
police training; punish police misconduct; guide prosecutors’ charging deci-
sions; improve disclosure requirements; punish prosecutor misconduct; pro-
vide better training and certification of trial judges in capital cases; give trial
judges veto power in capital cases (when juries impose death sentences);
eliminate time limits and other constraints on claims of actual innocence;
increase the resources and scope of innocence projects; collect relevant data;
establish innocence commissions; and provide assistance and indemnity.
Denov and Campbell, in this volume, also relate five case studies of Canadi-
ans wrongfully convicted and some of the adverse effects of wrongful con-
victions on those who were wrongfully convicted and their families. They
then describe Canadian responses to wrongful convictions emphasizing their
limitations. Finally, Cathleen Burnett, in this volume, addresses the issues of
restoring and compensating miscarriage of justice victims, particularly those
who have served lengthy prison sentences on Death Row. She explains why
current remedies are inadequate and argues that a restorative justice frame-
200 Journal of Contemporary Criminal Justice / August 2005

work is preferable. What are still needed with any of these remedies, how-
ever, are the political will, organizational commitment, and resources to
implement and monitor them.
In sum, all four of the articles in this special edition of the journal are
important contributions to the scholarly analysis of miscarriages of justice.
All four provide useful insights and suggestions for research on this long-
neglected topic. To move analysis of this subject forward, the federal and
state governments should be required by statute to compile an annual miscar-
riage of justice registry, listing all known cases of miscarriages of justice and
their causes. Such a registry would not only provide an indication of the prob-
lem’s magnitude but also would be an excellent resource to use to evaluate
criminal justice administration. It could reveal what works well and what is in
need of change. The integrity and legitimacy of the criminal justice process
depends largely on our efforts to eliminate injustice.

REFERENCES
Bohm, R. M. (2003). Deathquest II: An introduction to the theory and practice of cap-
ital punishment in the United States. Cincinnati, OH: Anderson.
Death Penalty Information Center. (2005). Available at www.deathpenaltyinfo.org/
IllinoisCCP.html
Forst, B. (2004). Errors of justice: Nature, sources, and remedies. New York: Cam-
bridge University Press.
Garner, B. A. (Ed.). (2000). Black’s law dictionary (abridged 7th ed.) St. Paul, MN:
West Group.
Innocence Project. (2004). Available at www.innocenceproject.org/about/index.php
PollingReport.com. (2005). Available at www.pollingreport.com/crime.htm#Death
Scheck, B., Neufeld, P., & Dwyer, J. (2001). Actual innocence: When justice goes
wrong and how to make it right. New York: Signet.