Fordham Law Review Volume 88 Issue 6 Article 15 2020 Convictions as Guilt Anna Roberts St. John’s University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Criminal Law Commons Recommended Citation Anna Roberts, Convictions as Guilt, 88 Fordham L. Rev. 2501 (). Available at: https://ir.lawnet.fordham.edu/flr/vol88/iss6/15 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. ARTICLE CONVICTIONS AS GUILT Anna Roberts* A curious tension exists in scholarly discourse about the criminal legal system. On the one hand, a copious body of work exposes a variety of facets of the system that jeopardize the reliability of convictions. These include factors whose influence is pervasive: the predominance of plea bargaining, for example, and the subordination of the defense. On the other hand, scholars often discuss people who have criminal convictions in a way that appears to assume crime commission. This apparent assumption obscures crucial failings of the system, muddies the role of academia, and, given the unequal distribution of criminal convictions, risks compounding race- and class-based stereotypes of criminality. From careful examination of this phenomenon and its possible explanations, reform proposals emerge. INTRODUCTION ................................................................................ 2502 I. FACTORS JEOPARDIZING THE RELIABILITY OF CONVICTIONS .... 2510 A. The Predominance of Plea Bargaining .......................... 2511 1. Chances at Trial ....................................................... 2511 2. Risks After Trial ...................................................... 2515 * Professor, St. John’s University School of Law. Thanks for generous and helpful feedback to Bryan Adamson, David Ball, Steven Bender, Robert Boruchowitz, I. Bennett Capers, Jenny Carroll, Margaret Chon, Richard Delgado, Dan Epps, Sheldon Evans, Barbara Fedders, Cynthia Godsoe, Lauryn Gouldin, Lissa Griffin, Eve Hanan, Paul Holland, Eisha Jain, Thea Johnson, Peter Joy, Anders Kaye, Kate Klonick, Anita Krishnakumar, Benjamin Levin, Kate Levine, Leah Litman, Sandy Mayson, Eric Miller, Janet Moore, Justin Murray, Barbara O’Brien, Lauren Ouziel, Najarian Peters, Russell Powell, Alex Reinert, Michael Risinger, Alice Ristroph, Jenny Roberts, Jessica Roth, Christopher Russell, Michael Russo, Jeremy Sheff, Ric Simmons, Julia Simon-Kerr, Jocelyn Simonson, Christopher Slobogin, Abbe Smith, Rachel Smith, SpearIt, Jean Stefancic, India Thusi, Kayonia Whetstone, and to participants at CrimFest!, the ABA Criminal Justice Section Workshop, the 2018 and 2019 NYC Criminal Justice Ethics Schmooze, the St. John’s University School of Law Faculty Retreat, and workshops at Seton Hall and Seattle University. Thanks for wonderful research assistance to Jamie Caponera, Brian Dolan, Sam Gagnon, Eva-Maria Ghelardi, Lauren Lozada, Jacqui Mancini, and Courtney Olson, for research support to Annette Clark, Brooke Coleman, Charlotte Garden, Anita Krishnakumar, and Michael Simons, and to Candis Roberts, Karena Rahall, and Sam Rahall for making all this possible. Finally, my thanks to the members of the Fordham Law Review for their editorial work. 2501 2502 FORDHAM LAW REVIEW [Vol. 88 3. Risks Before Trial .................................................... 2516 4. Lack of Safeguards .................................................. 2518 B. The Subordination of the Defense .................................. 2522 C. Inadequacy of Postconviction Safeguards...................... 2527 II. FUSION OF LEGAL AND FACTUAL GUILT ................................... 2531 A. Explicit Statements ......................................................... 2531 B. Embedded Implications .................................................. 2535 C. Considerations of Role ................................................... 2539 III. POSSIBLE EXPLANATIONS ........................................................ 2540 A. Motivated Reasoning ...................................................... 2540 B. Assumptions That Build .................................................. 2542 C. Merger of Act and Crime ................................................ 2543 D. A Narrow Conception of Innocence ............................... 2544 IV. IMPLICATIONS .......................................................................... 2545 A. Why This Matters ............................................................ 2545 B. What Might Be Done ...................................................... 2547 1. Statistics ................................................................... 2547 2. Vocabulary ............................................................... 2548 3. Keeping the Caveat in Mind .................................... 2550 CONCLUSION ................................................................................... 2550 INTRODUCTION The way in which we speak about the criminal legal system is often in tension with the way in which we speak about those who have been through it.1 Facets of the system that jeopardize its reliability often seem to be forgotten when we speak of those with convictions; legal guilt (which I use here to mean conviction) often seems to provoke an assumption of factual guilt (which I use here to mean commission of the crime). Thus, even when we urge more favorable treatment of those with convictions—that they should receive a second chance, redemption, rehabilitation, and so on—we risk obscuring flaws in the conviction-production process and reinforcing harmful stereotypes about where guilt resides. Who is “we”? In previous scholarship, I have written about assumptions of guilt, and assumptions about the meaning of convictions, on the part of 1. For more information about the phrase “criminal legal system,” see infra note 407 and accompanying text. 2020] CONVICTIONS AS GUILT 2503 police officers,2 jurors,3 judges,4 defense attorneys,5 legislators,6 prosecutors,7 and members of the public.8 One can only point elsewhere for so long. In this Article, I focus on the role of legal scholars. Some who work within the criminal system may be constrained in their ability to question the reliability of convictions.9 But the scholarly role is surely different and critically important. Legal scholars have, on the one hand, generated an expansive literature exploring factors that can jeopardize the reliability of convictions as markers of factual guilt. These factors include those that are identified by innocence scholars as the primary contributing causes of “false convictions.”10 But they extend further, into areas more central to this Article’s focus. Whereas the “Innocence Movement” has focused on “wrong-man convictions,”11 scholars have pointed out that one can be factually innocent of a crime for a number of reasons other than being the “wrong man.”12 One may be the right man, to the extent that there is one, but lack the mens rea (mental state) that constitutes part of that crime.13 One may be the right man but have a winning 2. See Anna Roberts, Reclaiming the Importance of the Defendant’s Testimony: Prior Conviction Impeachment and the Fight Against Implicit Stereotyping, 83 U. CHI. L. REV. 835, 865–66 (2016). 3. See Anna Roberts, Asymmetry as Fairness: Reversing a Peremptory Trend, 92 WASH. U. L. REV. 1503, 1530 (2015) [hereinafter Roberts, Asymmetry as Fairness]; Anna Roberts, Conviction by Prior Impeachment, 96 B.U. L. REV. 1977, 2015 (2016) [hereinafter Roberts, Conviction by Prior Impeachment]. 4. See Anna Roberts, Arrests as Guilt, 70 ALA. L. REV. 987, 998 (2019). 5. See id. 6. See Anna Roberts, Impeachment by Unreliable Conviction, 55 B.C. L. REV. 563, 586 (2014). 7. Anna Roberts, Disparately Seeking Jurors: Disparate Impact and the (Mis)use of Batson, 45 U.C. DAVIS L. REV. 1359, 1404 (2012). 8. See Roberts, supra note 4, at 1018–19. 9. See Charles Nesson, The Evidence or the Event?: On Judicial Proof and the Acceptability of Verdicts, 98 HARV. L. REV. 1357, 1358 (1985) (“Successful projection of a legal rule depends on a court’s ability to cast a verdict not as a statement about the evidence presented at trial, but as a statement about a past act—a statement about what happened.”); see also Daniel Givelber, Meaningless Acquittals, Meaningful Convictions: Do We Reliably Acquit the Innocent?, 49 RUTGERS L. REV. 1317, 1393 (1997) (“[A]n adjudicatory system has to operate on the premise that those duly convicted are guilty.”); id. at 1334 (“Even if innocents are convicted, the criminal justice system cannot formally acknowledge this because it will undermine society’s faith in the system.”). 10. See Samuel Gross, What We Think, What We Know, and What We Think We Know About False Convictions, 14 OHIO ST. J. CRIM. L. 753, 772 (2017) (discussing mistaken witness identification, false accusation, false confession, forensic evidence, and official misconduct). 11. See Keith A. Findley, Defining Innocence, 74 ALB. L. REV. 1157, 1157 n.1 (2010) (offering definitions of the Innocence Movement); Emily Hughes, Innocence Unmodified, 89 N.C. L. REV. 1083, 1085 (2011). 12. See Erik Lillquist, Balancing Errors in the Criminal Justice System, 41 TEX. TECH L. REV. 175, 184 (2008). 13. See Givelber, supra note 9, at 1327–28 (explaining that the narrow definition