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Guilty Until Further Notice / Daniel Medwed

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Here are the incentives of what I call the "innocent prisoner's dilemma": let's say you're innocent and you can't prove your innocence in court. I had a case like that, we couldn't prove his innocence in court. The direct appeal was over, we couldn't find newly discovered evidence, we couldn't do it. So in turn we would try to get him out on parole, or maybe on clemency from the governor. That's the executive branch, not the judicial branch. What the executive branch does, and here is the dilemma, they basically say that guilt or innocence is a question for the courts. They point the finger back at the courts. And they say "we will give mercy in the form parole or clemency, if we think the person is remorseful or is taking responsibility for their actions. But we are not going to re litigate guilt or innocence. We do not want to hear about innocence." So this puts the innocent prisoner in this dilemma. And option a) here is the prisoner can feign remorse, can feign responsibility, and basically "admit" guilt. That can maximize the prisoner's chance of getting parole. But in doing that you are basically jeopardizing any chance you might have to later prove innocence in court. Because now there is an admission of guilt on your record. Or option b) stick to your guns. You don't express remorse, you don't express guilt. And now the parole board will think that you are in denial, that you are not repentant. Note that prisons are called "penitentiaries" that is a nineteenth century religious concept. And you will probably be denied parole. You might preserve the possibility to re litigate the whole thin post conviction process, but as we discussed, newly discovered evidence is very hard to find and difficult to present to court. So you are damned if you do, damned if you don't.

Daniel Medwed talks about guilt and innocence in the eye of the law - and the courtroom - as discussed in his book "Barred: Why the Innocent Can't Get Out of Prison."

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Daniel Medwed

Medwed, a leading criminal law scholar. His research and pro bono activities focus around the topic of wrongful convictions. He is a founding member of the board of directors of the Innocence Network, a consortium of innocence projects throughout the world, and a former president of the board of directors of the Rocky Mountain Innocence Center. He is currently University Distinguished Professor of Law and Criminal Justice at Northeastern University in Boston, and serves on the board of the New England Innocence Project. He is also the legal analyst for GBH News, Boston’s local NPR and PBS affiliate.

Medwed's Northeastern University Faculty Page


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