Innocence Is As Innocence Does

Maybe I should turn these “is/does” titles into a series.

Anyway, an interesting tidbit via Grits-for-Breakfast about an upcoming law review article taking issue with the “innocence movement’s” “binary” approach to factual and legal innocence.  The article will apparently find fault with this because “legal innocence” should not be differentiated from “factual innocence”.

Keep in mind that this is a law review article.  Law review articles are a peculiar form of mental masturbation, seemingly having as their sole purpose the complication of simple things.

“Legal innocence” is predicated upon the “presumption of innocence”, a hallowed myth of the Anglo-American criminal justice system.  The phrase does not appear in the constitution, but it’s regularly bandied about at criminal trials, where juries are instructed about it.

It’s like a lot of things juries are instructed about.  They often don’t believe what they’re told, and neither does anyone else, and no one expects them to.  The “presumption of innocence” is certainly one such, a pious bromide that we use to pat ourselves on the back for our supposed fairness.  In fact, the accused is presumed by everyone to be guilty.  Everyone knows this.

Moreover, we enshrine this falsehood primarily because we are so proud to have transcended the evil bugaboo known as the “Inquisition”, which featured barbaric continental tribunals and Catholics, both of which were really icky to 18th century Brits and most Americans.  In the inquisitorial tribunals – which nevertheless didn’t try, convict and punish with nearly the frequency of modern American courts – an accused was presumed guilty.

In short, just as the presumption of innocence is itself the product of  largely false and rigid mythology, that mythology is a counter-narrative to another false mythology about the “Inquisition”, which was little more than an ugly and reflexive 18th century British anti-catholicism.

I doubt the law review article will go into any of that, though.

Now that I’ve appropriately set the stage, though, I can think of few debates that are less relevant to the reality of the problems in our criminal justice system than bemoaning the “binary” treatment of factual and legal innocence, yet it seems for that very reason to preoccupy the minds of a certain brand of legal “scholars”.   The “innocence movement” should stop distinguishing between “legal” and “factual” innocence, they say, because “legal” innocence is all that matters to us smart scholars.  Only the general public and other troglodytes worry about factual innocence.

It’s a procedural thing, doncha know.

If you really wanted to fault the “innocence movement” for something that has a tactical downside, I would pick the over-emphasis on death penalty cases, which has no intellectual/legal justification at all in the absence of an explicit argument that the death penalty is a per se 8th amendment violation, which is ordinarily not made.  Even so, the federal courts, including the Supreme Court distinguish in their dockets between death penalty cases and others, which works to the detriment of meritorious issues that are presented with greater frequency in non-death penalty cases.  I’ve posted about this on Gamso’s blog.

But since the “innocence movement” is doing unambiguously laudable work, I’m not going to complain too much about their intellectual inconsistencies, even when they’re meaningful and have an impact in the real world.  I certainly wouldn’t go to the trouble of writing a law review article about it.

I can’t imagine that others, like academics, have so much time on their hands – so much unused space in their brains – that they can actually write a scholarly article to take issue with a perceived failure that is meaningless, both practically and intellectually.


Filed under Judicial lying/cheating

2 responses to “Innocence Is As Innocence Does

  1. Rob

    I read the abstract to the article. As far as I can tell, the author finds fault with the distinction because some people who are “factually” guilty are “legally” innocent. They committed the underlying act but their rights were violated in some fashion, thus they ought to be innocent.

    I didn’t read anything about the presumption of innocence, but I am mostly uniformed about its origins and maybe the concept was implicit in the abstract and I didn’t recognize it.

    Anyway, I have no complaint if the author wants to reaffirm the practical application of innocence by bringing to light a distinction that may be useful to some criminal defendants. I only wonder if the courts and other lawyers disregard legal innocence because the Innocence Project focuses on factual innocence. That scenario strikes me as unlikely, but I really have no idea.

    But I agree with you such “scholarly” articles complicate the simple. Orwell would not be pleased.


    • It just seems to me that factual innocence is what people mean by “innocence”. There’s nothing wrong, from a lawyer’s point of view, with a concern over procedural irregularities that should, but do not, result in a “not guilty”, regardless of actual innocence; but even lawyers should not be indifferent to the more fundamental and important problem of the system getting the facts wrong, and actually punishing innocent people.

      The abstract of that article seems to suggest such indifference. This is a huge mistake on every level: intellectually, morally, politically. What bothers me most about it is that such indifference is not even genuine: nobody, including lawyers, is really indifferent to the distinction between actual and “legal” innocence.

      Pretending that we are, and portraying that as a sophistication ordinary people are not capable of, isn’t fooling anyone, but also oddly discredits the profession. It is a position with absolutely nothing to recommend it, and you have to wonder why so many of our own pretend to adhere to it.


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