by Sydney Arnold
August, 2022
History of Wrongful Convictions
The United States has the highest prison population of any country in the world, which is why it should come as no surprise that, in such a punitive society, mistakes can happen. As of July 2021, America’s prison population stands at around 2.1 million people. Although the true number remains unknown, it is estimated that approximately 1% of the United States prison population has been wrongfully convicted. That means about 20,000 people currently, or 975 per year, or 2 per day (Innocence Project). When these mistakes do occur, what happens when someone wants to fight their conviction? What happens if they win? Perhaps more importantly, what protections are put in place to minimize the risk of this ever even happening in the first place? This is where we see even more problems emerge in this society that has grown so accustomed to locking people up and throwing away the key. The indictment, instead of justice, has seemingly become the main goal.
First, one should examine the circumstances surrounding how a person might find themselves wrongfully convicted when going through their initial indictment/trial phase. Unfortunately, mistaken witness identifications are the leading factor in wrongful convictions. It has been proven time and time again that a person’s eyewitness testimony can be unreliable and influenced by things such as the passage of time, suggestive language from investigators, issues in making cross-race identifications, or other environmental impacts (Innocence Project). Once a wrongful conviction is passed down, and all appeals have been exhausted, what happens next? What rights do people have to try to prove their innocence? Unfortunately, in most states, the process is a nightmare.
Current Legislation & Room for Reform—The “Fifth Ingredient”: Hope
Now that the stage has been set for understanding the issue, itself, of wrongful conviction and what it puts innocent people through, I would like to look deeper into where that can fit in with reconciliation. Giving hope through reform efforts could help encourage those who have been wrongfully convicted to pursue reconciliation.
As it is now, every state differs in their laws related to both efforts for preventing wrongful convictions, as well as what can be done after the fact. For example, not every state has laws to protect the retention of evidence for the duration of incarceration. Furthermore, there are varying degrees of laws that relate to the right to have DNA re-tested and how long that process takes. If, by chance, you are one of the few who does finally make it to the end of this grueling process, you may be surprised to discover a new set of hurdles.
The fact is, many of those who were wrongfully convicted are never given any monetary assistance or help re-integrating back into society. With each state having their own, unique laws, there are no universal policies that can be assessed for comparison. However, The Innocence Project has created a tool for checking the current legislation for every state, as well as when those laws were last updated. They include categories relevant to the policy recommendations being made in this paper such as: eyewitness identification reform, post-conviction DNA testing, evidence preservation, exoneree compensation, and even a few other categories for consideration. This could be a step in the right direction for trying to find standardization or to assess which states are in the greatest need for reform.
If these core issues are addressed and reforms are made, it could lead to hope for those who were involved in these flawed processes themselves; hope that the justice system cares to right this wrong and try to prevent it from ever happening again to anyone else. “Hope is a positive emotion that arises due to a cognitive process involving imagining a desired future…Within the context of conflict, conceptual and empirical work indicates that experiencing hope is related to support for policies and actions promoting peace. Importantly, past work has demonstrated that people observed as experiencing hope are seen by others as more likely to make concessions” (Cohen-Chen & Halperin, 2017, pg. 154). This article also goes on to describe hope, and other expressions of positive emotions, as being a signal that one of the parties is open to taking steps towards peace. This could open the door for someone who was wrongfully convicted to want to put an end to the feelings of animosity and helplessness that they have felt since receiving the conviction. Hope, in particular is an emotion that looks towards wanting a better future. Therefore, instilling hope could make exonerees more amenable to reconciliation processes.
Types of Justice—Restorative, Retributive, Procedural, and Distributive
Justice can take on many different forms and meanings. For the purpose of this paper, I will focus on four: restorative, retributive, procedural, and distributive. Restorative justice is about healing and mending relationships on a personal level. It often involves the victim, offender, and the community as they all try to find a way to move forward from the harm that has been committed. As proposed by Grant (2008), “In the context of exoneree mediation, there are a number of people who could attend the mediation including: the exoneree, a representative from the state such as the prosecuting attorney or a member of law enforcement who was involved in the case, the crime victim, the true offender when known, members of the community, counselors or psychiatrists, and support persons. The two core parties are the exoneree and the state representative(s). Wrongful convictions turn the usual relationship between these parties on its face. The state, as the people's voice in criminal prosecutions, failed to ensure justice, while the exoneree, originally labeled the ‘offender,’ becomes a wronged victim. The state should mend the egregious miscarriage of injustice that occurred to retain its moral authority. It is thus critical to include the exoneree as well as the prosecuting attorney and members of law enforcement who investigated the case” (pg. 22).
Retributive justice is a more punitive viewpoint, which is generally what we see here in the United States. The concept is that people should be punished when they do something wrong and, in turn, that punishment should also act as a deterrent for committing future wrongs. It is through retributive justice that the person was convicted and sentenced in the first place. They were deemed to have done a crime and were subsequently sent to prison as the punishment.
Procedural justice is concerned with doing things in the most neutral and fair way possible. The important thing to remember with this form of justice is that, “If people believe procedures to be fair, they will be more likely to accept outcomes, even ones that they do not like” (Maiese & Burgess, 2020). Therefore, even the perception of being treated fairly matters, and that is certainly heightened in criminal trials where a person, who very well may be innocent, hangs in the balance and in the hands of a jury who is supposed to take on a stance of neutrality. Furthermore, the issue of race must be raised. I propose three points to be considered here: 1. African Americans make up the majority of the prison population, by far, 2. Mistaken eyewitness testimonies are one of the leading factors that lead to wrongful convictions, and 3. Most people struggle in making accurate cross-race identifications. These are all factors that must be acknowledged and accounted for if hoping to carry out a fair and neutral trial.
Finally, distributive justice considers more of an economic component, or essentially anything that can be divided and distributed (i.e., money, power, land, time, etc.). It is about deciding what is considered to be fair in a divisional context, which can be difficult to get people to agree on. While some believe certain resources should be given equally, others believe it should be need-based. It shows the deeper complexity of how justice, and what that should look like, can be very different from one person to the next. In this context, just as that of procedural justice, race matters. Not only do African Americans make up the majority of the prison population, but they often are less likely to be able to make bail (Rabuy & Kopf, 2016). This falls under an issue of distributive justice.
Of course, when looking at the differing types of justice, we must also consider that there are cultural influences at play. However, the overarching concept describing its ultimate importance is the same: “Just institutions tend to instill a sense of stability, well-being, and satisfaction among society members, while perceived injustices can lead to dissatisfaction, rebellion, or revolution” (Maiese & Burgess, 2020). I will discuss these different types of justice and their applicability further in the next section.
Efforts for Reconciliation—Truth, Mercy, Justice, Peace (Lederach), Plus Accountability and Compromise
In the exercise, Lederach personifies these concepts and asks participants to consider factors such as “who” would work well together, “who” might be opponents, and in what circumstances. In the context of this paper, I will look at how these concepts could have the potential to encourage reconciliation between the justice system and those who have been wrongfully convicted. I will also argue the importance of adding accountability and compromise into this mix. All of these concepts are tied perfectly together here:
“One thing that always comes out is that the truth of what happened in the past has to be exposed to bring about reconciliation, but that truth needs to be balanced with mercy for those who have been found to have done wrong. Without the hope of mercy, oppressors will not tell the truth. There also needs to be some accountability. The Justice group usually ends up debating how much they want to advocate for punishment (retributive justice) and how much they want to offer redemption (restorative justice). They also often grapple with the notion of reparations, procedural justice, and distributive justice, and how much of each they want and what each means. Usually, they go into the negotiations with the other ‘people,’ wanting it all, but end up compromising some of each in order to ‘make peace’ with the other people in the room. It is a powerful exercise that shows both the complexity of these concepts, but also how compromises can be forged to reach reconciliation. This corresponds directly to Rasool's notion of ‘proportionality’ between peace and justice, and between peace and truth. When such proportionality is sought ‘in the real world,’ it helps a lot to have an agreed-upon vision of the desired future which will suggest what balance of these four elements will most likely achieve the desired ends” (Burgess & Burgess, 2020).
Truth, much like the other concepts that will follow, can be defined in many different ways. This is partly due to the fact that there can be more than one truth. That can be okay, but truth becomes messy when the claim is that only one point of view is the right one, and all others are wrong. In this context, truth will require one, definitive viewpoint, which is that the person who was exonerated is, in fact, innocent. This can be a hard truth for many to accept, because that will then require for some to admit that mistakes were made. It also can open up old wounds for the victims or their families knowing that the right person, who actually committed the crime, was not brought to justice. Therefore, it is important to remember that the truth can be painful. Burgess & Burgess (2020) reflect on a quote from a speech given be Ebrahim Rasool which compares truth telling to peeling an onion, “[You peel] an onion, layer by layer. The tears are rolling, it’s painful, but it has to be done to get to the core of what went wrong. And you must have a sense of accountability.”
In this case, I believe truth plays an important role in being honest about the exponential harm and hurt that has been caused to another person by imprisoning them for years on end for something that they did not do. Those are years that they can never get back. Therefore, the burden should be on key actors within the justice system to admit to their wrongdoing and be truthful and transparent about the irreversible mistake that was made. “The coexistence of forgiveness accepted by the wrongdoer and repentance accepted by the victim makes possible the higher goal of reconciliation” (Inazu, 2009, pg. 321). This is also a situation that turns the victim/perpetrator dynamic on its head. The exoneree, once looked at as the wrongdoer (or perpetrator) has now become the victim. This is the “truth” that must be corroborated by all involved.
Considering that some exonerations do not occur until the accused has already died (either in prison, on death row, or at the hands of the state), this raises an interesting question about whether or not forgiveness can be granted on behalf of someone who has passed away. Inazu (2009) asserts that most people feel that this is not possible, because forgiveness is so personal, making this a possible limitation of some forms of reconciliation. However, he follows this up by reminding us that, “It is the living, not the dead, who prevent violence between each other and endeavor to cooperate toward peace” (pg. 321). Therefore, whether or not the victim(s) is/are dead or alive, finding a proportionality between truth and peace that paves a path toward reconciliation can always be beneficial.
Mercy (also referred to as forgiveness) is important because, if following Lederach’s distinction, “conflict resolution focuses on issues and problems, while reconciliation focuses on mending relationships” (Burgess & Burgess, 2017), then true reconciliation will not be possible without the victim being ready or willing to show mercy towards those who were responsible for the harms committed. Of course, it should be recognized that showing mercy is no easy feat. This becomes especially difficult if the one being shown mercy has not truly changed their ways. In this scenario, the justice system may not “deserve” mercy in the eyes of the victim/exoneree until they have made efforts towards reform to try to prevent this from happening again. This would be a step in the right direction for showing that they are truly sorry, feel that they were in the wrong, and are, subsequently, in need of being shown mercy.
All things considered, it is possible that mercy would need to come in a different order, such as, perhaps, after a perceived sense of justice has been served. “In cases of innocent defendants and witnesses, trials not only perpetuate the cycle of violence but also extend it outward by creating new forms of violence and new victims (manifested most grossly when due process is violated or when innocent defendants are wrongfully convicted and punished). Forgiveness breaks the cycle of violence by avoiding the collateral acts of violence inevitably caused by the administration of legal justice. A wrongdoer who receives personal forgiveness from his victims and legal forgiveness from the state begins with a ‘clean slate.’ In a sense, this comes at the cost of ‘justice’” (Inazu, 2009, pg. 312). This is just one example of how mercy and justice can, at times, be at odds with each other.
Justice, as mentioned in the previous section, can take on many different forms and meanings. With it having been an injustice that caused the person to be wrongfully convicted in the first place, how are they supposed to trust the justice system moving forward? I would propose that any justice implemented would need to be a drastically different approach from the one used to pass down the conviction (retributive justice). Instead, this could be a good opportunity to utilize restorative, procedural, and/or distributive justice. However, in the case of a wrongful conviction, there is another party to be considered besides just the exoneree, and that is the victim (or family of the victim) who was involved in the actual crime that took place. It may not have been the exoneree who committed that crime, but someone did, and now there is a party to this who is left feeling like justice has not been served in their case.
If choosing to take a restorative justice approach, Grant (2008) asserts that, “The decision of whether to include the crime victim is a particularly thorny issue. The crime victim's presence raises two possible complications. The first issue is that having the crime victim present will shift attention away from the exoneree…The second issue emerges where the crime victim still believes that the exoneree is guilty despite forensic or DNA evidence. Here, to ensure that the exoneree is not revictimized by the crime victim, the mediator should not schedule the mediation if the mediator gets any indication that the crime victim has not come to terms with the exoneree's innocence. Instead, the mediator should explore this issue in depth with the crime victim. It can take victims months or even years to prepare for mediation” (pg. 22).
Finally, the hope is that peace can be achieved through all of this. Once again, peace is hard to define, and it can look different to everyone. However, for someone who was wrongfully convicted, I would imagine peace to look like being free from years and years of legal battles because the justice system has admitted to their wrongdoings and is wanting to make every effort to make things right. Without this, peace may just be a “cover up” and a way to try to sweep things under the rug in order to just move on already.
For actual reconciliation to occur, the exoneree should not just be offered some sort of payout facilitated by a settlement deal where they give up their rights to pursue this again in the future. “Although focusing on tangible issues such as money or property and ignoring intangible issues that relate to the psychological needs of the adversaries is a common practice, it often deadlocks the negotiation. In other words, as long as these emotional needs remain unsatisfied, they block the path to reconciliation” (Shnabel & Nadler, 2008, pg. 116). Instead, it should be a process whereby the key actors in the justice system try to correct their wrongdoings. This is supported by research related to conflicting groups’ perception of peace. Cohen-Chen & Halperin (2017) assert that when groups involved in a conflict reject a peace agreement, it is often because they believe that the other group will oppose it as well. As a result, knowing the attitude that the groups have towards obtaining peace can be productive in being able to obtain it. So, if the justice system chooses to fight the exoneree through legal, or other, avenues, then peace may not be easily reached. Alternatively, if concessions are made and put forth then it may bring the other party to the table for peace and reconciliatory related talks.
Those are the four concepts that Lederach puts forward. However, as shown in the excerpt from Burgess & Burgess (2020) above, accountability and compromise are quite important as well. If the justice system and those involved are not willing to take accountability for what has happened, then not much can be achieved here for moving towards reconciliation. Accountability is important each step of the way, especially if taking on a restorative justice process. Part of taking accountability is being able to apologize. This can become much more difficult when acknowledging that, in all cases of wrongful convictions, it is not any one person or action that was responsible for the misjustice. There are prosecutors, law enforcement officers, jurors, and witnesses who were all involved, making it a combination of missteps and multiple actors that led to this result (International Association of Chiefs of Police, 2013). Nevertheless, apologies should be extended when possible and plausible.
Shnabel & Nadler (2008) assert that emotional needs must be met if hoping to achieve real reconciliation. Nadler (2002) calls this process the “socio-emotional route to reconciliation”, wherein one example of this could be for victims and perpetrators to use apologies and forgiveness as a way for meeting these emotional needs. In this case, the actors within the justice system who were responsible for the wrongful conviction should apologize, and the exoneree would forgive them. “Actions that satisfy the differential needs of victims and perpetrators (such as granting forgiveness or offering an apology) facilitate the recovery of the parties’ impaired psychological resources and thus promote their willingness to reconcile. In this manner, socio-emotional reconciliation can be framed as an act of social exchange: Reconciliation is facilitated when victims and perpetrators receive needed emotional ‘commodities’ through post conflict interactions” (Shnabel & Nadler, 2008, pg. 117).
It is also important for those who make up the justice system to take accountability because of the power imbalance that exists between them and the exonerees. Even in a general sense, victims often feel that they have less power and control than the perpetrator. As a result, many victims may engage in power-seeking behavior; seeking for those who have wronged them to take responsibility for what they have done and putting the power back into the hands of the victim to be able to choose whether or not to forgive them.
Alternatively, perpetrators experience a different set of emotions. Most often, they may be feeling guilt and shame, leading to one of two outcomes: “the human need for power or the human need for love and belonging.” Therefore, the justice system can hide behind its power status and try to protect their perceived morality by not admitting to wrongdoing (i.e., not taking accountability) or they can act on their feelings of guilt and shame (and ultimately of wanting to belong) and want to make things right with the victim. “When a successful social exchange takes place between victim and perpetrator, both sides satisfy their emotional needs and cease to feel weaker than or morally inferior to their counterpart. This generates a process of symbolic erasure of the roles of victim and perpetrator, which places the involved parties on a more equal footing and thus leads to a greater willingness to reconcile with one’s opponent” (Shnabel & Nadler, 2008, pg. 117).
Compromise will also be important because there is no perfect solution to a problem, such as this one, where those years spent behind bars and all of the subsequent consequences to that cannot be undone. Although legislative reforms can be made, re-integration assistance given, and money offered, someone who was wrongfully convicted can still feel like they deserve even more and that these incentives are not enough. “Restitution can compensate for material loss but cannot restore damaged relationships. Only forgiveness can release the relational debt incurred by the wrongdoer” (Inazu, 2009, pg. 313). It is important to try to find a middle ground of realizing that there are many things that cannot be undone or given back, but these are things that can be given to help them with their future and moving forward.
Reconciliation between actors in the justice system and those who have been wrongfully convicted is possible under the right circumstances. I am proposing in this paper that key components to this process will be: Giving hope through reform, implementing other forms of justice (besides the traditional, American retributive justice), and efforts taken towards pursuing truth, mercy, justice, peace, accountability, and compromise. These are not the only ways that I believe reconciliation could come about, but just an example of one path that could be taken. The wrongfully convicted have already had so much taken away from them in their lives, and even with an exoneration, it can be difficult to shake the title of “offender”. They are not always so easily welcomed back into their families or communities. There is a lot of reconciling to be done in these cases, but those who played a part in their wrongful conviction should be held accountable to step up and try to take part in reconciliatory practices. It cannot undo what has been done, but it can be a step towards mending relationships and righting wrongs.
“Any wrongful conviction is one too many. The damage done to the defendant, the crime victim, investigators, prosecutors, defense attorneys, the entire justice system, and the community is massive…And the damage goes even further as the true criminal remains free to commit new crimes and create new victims” (International Association of Chiefs of Police, 2013).
References
Burgess, H., & Burgess, G. (2020). Ebrahim Rasool on what America might learn from South Africa's 300+ years of struggle. Beyond Intractability. Retrieved February 20, 2022, from https://www.beyondintractability.org/cci-mbi-cv19-blog/ebrahim-rasool
Burgess, H., & Burgess, G. (2017). John Paul Lederach's "Meeting place". Beyond Intractability. Retrieved February 20, 2022, from https://www.beyondintractability.org/moos/lederach-meeting-place
Cohen-Chen, Crisp, R. J., & Halperin, E. (2017). Hope Comes in Many Forms: Out-Group Expressions of Hope Override Low Support and Promote Reconciliation in Conflicts. Social Psychological & Personality Science, 8(2), 153–161. https://doi.org/10.1177/1948550616667612
Grant, K. N. (2008). Ten dollars for twenty-four years: providing justice for exonerees using victim-offender mediation. Dispute Resolution Magazine, 15(1), 19–. Retrieved February 17, 2022, from https://www-proquest-com.mutex.gmu.edu/docview/206388839?pq-origsite=primo&accountid=14541
Inazu, J. D. (2009). No Future Without (Personal) Forgiveness: Reexamining the Role of Forgiveness in Transitional Justice. Human Rights Review (Piscataway, N.J.), 10(3), 309–326. Retrieved February 17, 2022, from https://doi.org/10.1007/s12142-009-0120-8
International Association of Chiefs of Police. (2013). National Summit on Wrongful Convictions: Building a systemic approach to prevent wrongful convictions. Retrieved February 20, 2022, from https://permanent.fdlp.gov/gpo92381/IACP-Wrongful_Convictions_Summit_Report.pdf
Maiese, M., & Burgess, H. (2020). Types of Justice. Beyond Intractability. Retrieved February 20, 2022, from http://beyondintractability.org/essay/types-of-justice
Nadler, A. (2002). Post-resolution processes: Instrumental and socioemotional routes to reconciliation. In G. Salomon & B. Nevo (Eds.), Peace education: The concept, principles, and practices around the world. Mahwah, NJ: Erlbaum.
Rabuy, B., & Kopf, D. (2016). Detaining the poor: How money bail perpetuates an endless cycle of poverty and Jail Time. Prison Policy Initiative. Retrieved May 9, 2022, from https://www.prisonpolicy.org/reports/incomejails.html
Reform through the courts. Innocence Project. (2019). Retrieved February 18, 2022, from https://innocenceproject.org/policy/
Shnabel, N., & Nadler, A. (2008). A Needs-Based Model of Reconciliation: Satisfying the Differential Emotional Needs of Victim and Perpetrator as a Key to Promoting Reconciliation. Journal of Personality and Social Psychology, 94(1), 116–132. Retrieved February 17, 2022, from https://doi.org/10.1037/0022-3514.94.1.116
