GEORGETOWN LAW
Faculty Publications

Georgetown Public Law and Legal Theory Research Paper No. 10-22
April 2010

Innocence Commissions and the Future of
Post-Conviction Review
52 Ariz. L. Rev. (forthcoming, 2010)

David Wolitz
Associate Professor
Legal Research and Writing
Georgetown University Law Center
diw4@law.georgetown.edu
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Posted with permission of the author

Electronic copy available at: http://ssrn.com/abstract=1593158

INNOCENCE COMMISSIONS AND
THE FUTURE OF POST-CONVICTION REVIEW
David Wolitz∗
Abstract:
In the fall of 2006, North Carolina became the first state to establish an innocence
commission – a state institution with the power to review and investigate individual postconviction claims of actual innocence. And on February 17, 2010, after spending
seventeen years in prison for a murder he did not commit, Greg Taylor became the first
person exonerated through the innocence commission process. This article argues that
the innocence commission model pioneered by North Carolina has proven itself to be a
major institutional improvement over conventional post-conviction review. The article
explains why existing court-based procedures are inadequate to address collateral claims
of actual innocence and why innocence commissions, due to their independent
investigatory powers, are better suited to reviewing such claims. While critics on the
Right claim that additional review mechanisms are unnecessary or too costly, and critics
on the Left continue to push for a court-based right to innocence review, the commission
model offers a compromise that fairly balances the values of both finality and accuracy in
the criminal justice system. At the same time, I argue, the North Carolina commission
suffers from the tension – inherent in all expert agencies – between efficiency and
discretion, on the one hand, and procedural fairness and accountability, on the other. I
offer several suggestions for reform of commission procedures to help insure that none of
these values is overwhelmed by the others. Overall, the record of the North Carolina
commission demonstrates that the commission approach can provide justice where the
traditional court system has failed, and, with the reforms I suggest here, it ought to be a
model for states across the country.

∗

Associate Professor, Legal Research and Writing, Georgetown University Law Center. J.D., Yale Law
School. A summer writing grant from Georgetown University Law Center supported the research and
writing of this article. I would like to thank Michael Seidman, Richard Rosen, Jeremy Pam, and Bella
Wolitz for their support and encouragement. I am especially grateful to Jeffrey Shulman for reading
multiple drafts, providing helpful comments, and believing in the project from inception to completion.
The article’s shortcomings are, of course, entirely my own.

Electronic copy available at: http://ssrn.com/abstract=1593158

Table of Contents
Abstract:.............................................................................................................................. 1
Section I: Introduction ........................................................................................................ 3
Section II: Traditional Notions of Finality and the Creation of the Innocence Problem... 9
Section III: Innocence Commissions and the North Carolina Approach......................... 19
A. The British Criminal Cases Review Commission.................................................... 20
B. Innocence Commissions in the United States .......................................................... 26
C. The North Carolina Innocence Inquiry Commission: How It Works ...................... 31
Section IV: Holistic Criticisms ........................................................................................ 38
A. Criticism from the Right: Taking Finality Seriously .............................................. 40
1. All Post-Conviction Factual Review Is Categorically Unnecessary.................... 44
2. Innocence Commissions Are Too Costly ............................................................ 49
3. Innocence Commissions Will Not Increase Accuracy......................................... 53
4. Innocence Commissions Will Lead to More Wrongful Convictions................... 57
B. Criticism from the Left: The Value of Innocence Review...................................... 59
Section V: Advantages of the Commission Approach .................................................... 67
A. Dedicated Procedure for Fact-Based Claims .......................................................... 69
B. Independent Investigatory Power............................................................................ 71
C. Ancillary Benefits of the Commission ..................................................................... 73
Section VI: Proposed Reforms......................................................................................... 75
A. Who Guards the Guardians? Improving the Commission’s Accountability............ 76
B. The New Evidence Requirement and the Standard of Review ............................... 80
Section VII: Conclusion.................................................................................................... 82

2
Electronic copy available at: http://ssrn.com/abstract=1593158

“You want to hear that word – innocent – because that’s what you are.”
Greg Taylor, the first person to be exonerated through the procedures of the
North Carolina Innocence Inquiry Commission.∗
Section I: Introduction

The problem of innocence will not go away. Since 1989, over two hundred and
fifty Americans have been exonerated of serious crimes because subsequent evidence
demonstrated their actual innocence.1 These exonerations, made possible largely because
of new DNA technology, constitute the most dramatic story in American criminal law
over the past two decades. The problem of innocent people languishing in prison for
crimes they did not commit is not, of course, a new one. But the exonerations of the past
twenty years have dramatically changed our perception of the scope of the problem. If
we ever could comfort ourselves with the thought that our elaborate criminal procedures
made punishment of the innocent virtually impossible, we can no longer be so
complacent. Today, we know that hundreds, if not thousands, of innocent people have
been convicted and imprisoned for crimes they did not commit.2 The sheer numbers of
innocent people convicted is the major empirical aspect of our innocence problem.

∗

Greg Taylor, Television Interview with WRAL, Raleigh, N.C. (Feb. 17, 2010), available at
http://www.wral.com/news/local/video/7066396/ (last visited March 8, 2010). Taylor served seventeen
years in prison for a murder he did not commit. Id.
1
According to the Innocence Project, there have been 251 post-conviction exonerations due to DNA
evidence alone. The Innocence Project, Facts on Post-Conviction DNA Exoneration,
http://www.innocenceproject.org/Content/351.php (last visited Feb. 20, 2010). A 2005 study found a total
of 340 post-conviction exonerations in the United States between the years 1989 and 2003. Samuel R.
Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523
(2005).
2
The total rate of factually false convictions is a matter of considerable debate. Compare D. Michael
Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. CRIM. L.
& CRIMINOLOGY 761, 780 (2007) (finding that, in 3.3% to 5.0% of convictions in capital rape-murder trials
in the United States between 1982 and 1989, the defendants were innocent) with Ronald J. Allen and Larry
Laudan, Why Do We Convict as Many Innocent People as We Do? Deadly Dilemmas, 41 TEX. TECH L.
REV. 65 (2008) (arguing that the rate of false convictions in Risinger’s study would be closer to 0.045% if
plea bargains were included). Even a 2% error rate in the conviction of those currently incarcerated in U.S.

3

The legal aspect of our innocence problem is the enduring resistance of our
judicial system to recognizing post-conviction claims based on factual innocence.3 While
there is a common perception that criminal convictions may be endlessly appealed and
challenged collaterally, the reality is that after a valid conviction, there are very few ways
for criminals to make fact-based challenges to the verdict. The celebrated writ of habeas
corpus – the most well-known avenue of post-conviction procedure – is simply not a
vehicle for such fact-based challenges. The United States Supreme Court has
consistently refused to recognize “actual innocence” as a ground for habeas relief despite
the pleas of numerous plaintiffs, activists, and academics.4 And while most state criminal
procedure codes provide for motions for retrial, the statutes of limitations for such

prisons would mean that roughly 46,000 people are incarcerated in the United States for crimes they did not
commit. See N.C. Aizenman, New High in U.S. Prison Numbers: Growth Attributed to More Stringent
Sentencing, WASH. POST, Feb. 29, 2008, at A1 (estimating the total prison population of the United States
at 2.3 million). The best estimates suggest that thousands of innocent people are convicted annually. See
also Richard A. Wise et al, How to Analyze the Accuracy of Eyewitness Testimony in a Criminal Case, 42
CT. REV. 435, 440 (2009) (“Each year thousands of men and women in the United are wrongfully
convicted of felonies that they did not commit.”).
3
See infra Section II. A word on terminology: I use the terms “actually innocent” and “factually innocent”
interchangeably to refer to defendants who did not commit the crime for which they were convicted. See,
e.g., Daniel Givelber, Meaningless Acquittals, Meaningful Convictions: Do We Reliably Acquit the
Innocent?, 49 RUTGERS L. REV. 1317, 1346 n.92 (1997) (“Actual innocence means what it says – the
defendant did not commit the crime of which he has been convicted.”). I call convictions of the factually
innocent “false convictions” and consider them a sub-set of the larger class of “wrongful convictions.”
Wrongful convictions include all convictions based on legal error. See Andrew M. Siegel, Moving Down
the Wedge of Injustice: A Proposal for a Third Generation of Wrongful Conviction Scholarship and
Advocacy, 42 AM. CRIM. L. REV. 1219, 1219 n.1 (2005) (“I count myself among those who use the term
‘wrongful conviction’ to refer not only to the conviction of the innocent but also to any conviction achieved
in part through the violation of constitutional rights or through the use of systems and procedures that
render the proceedings fundamentally unfair.”). For the purposes of this article, I refer to any false
conviction or wrongful conviction as a “miscarriage of justice.”
4
District Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308 , 2321 (2009)
(“Whether such a federal right exists is an open question. We have struggled with it over the years, in
some cases assuming, arguendo, that it exists while also noting the difficult questions such a right would
pose and the high standard any claimant would have to meet.”); House v. Bell, 547 U.S. 518, 554 - 55
(2006) (“House urges the Court to answer the question left open in Herrera and hold not only that
freestanding innocence claims are possible but also that he has established one. We decline to resolve this
issue.”); Herrera v. Collins, 506 U.S. 390, 401 (1993) (“Few rulings would be more disruptive of our
federal system than to provide for federal habeas review of freestanding claims of actual innocence.”).

4

motions are usually very short and strictly enforced.5 Many courts, most famously the
Supreme Court in Herrera v. Collins, suggest that prisoners bringing claims of actual
evidence should address their pleas to their state governors (or the President) who have
the power of the pardon.6 But, of course, executive clemency is a matter of pure
discretion, it is politically risky, and many state pardon boards are ill equipped to
scrutinize such pleas, even if they are open to them.7 The most promising avenue for
relief appeared to be the statutes passed in almost every state over the past decade-and-ahalf allowing for claims of innocence based on DNA technology.8 Unfortunately, these
statutes place so many procedural limitations on the types of plaintiffs who can use them,
the time within which such motions may be brought, and the scope of conviction covered
that they have proven to be wholly inadequate to the task of providing a real mechanism
for exonerating the innocent.9 The lack of any clear procedure for entertaining postconviction claims of actual innocence, coupled with the undeniable fact of wrongful
convictions, is the Innocence Problem that will be the focus of this article.

5

See infra Section II.
Herrera, 506 U.S. at 415 (1993) (“Executive clemency has provided the ‘fail safe’ in our criminal justice
system.”).
7
Nicholas Berg, Note, Turning a Blind Eye to Innocence: The Legacy of Herrera v. Collins, 42 AM. CRIM.
L. REV. 121, 145 – 46 (2005) (“For a number of reasons, clemency is simply institutionally incapable of
providing meaningful and comprehensive review of bare-innocence claims. Throughout the country, the
clemency process poses three major problems: (1) it is subject to the whims of the political process, (2) it
lacks guaranteed procedural safeguards, and (3) its use is approaching the vanishing point.”); Margaret
Colgate Love, Sentence Reduction Mechanisms in a Determinate Sentencing System: Report of the Second
Look Roundtable, 21 FED. SENT. R. 211 (2009) (“[P]roposals to ‘ramp up’ clemency in the federal system
may be stymied by the resources this would require from prosecutors and courts.”).
8
See Kathy Swedlow, Don’t Believe Everything you Read: A Review of Modern “Post-Conviction” DNA
Testing Statutes, 38 CAL. W. L. REV. 355, 355 - 56 (2002) (“There is no doubt that these statutes are
revolutionary: they create a realistic hope for some of the ‘wrongfully convicted,’ erect brand new legal
avenues for relief, and demand a new level of accuracy from the criminal justice system.’”).
9
See id. at 356 - 67 (detailing the many procedural barriers to relief under the new DNA-specific statutes);
Daniel S. Medwed, Up the River Without a Procedure: Innocence Prisoners and Newly Discovered NonDNA Evidence in State Courts, 47 ARIZ. L. REV. 655 (2005) (detailing the many procedural barriers to
post-conviction relief for petitioners who do not have DNA evidence).
6

5

For a variety of reasons, North Carolina was an early leader in the movement of
states to respond to the dramatic rise in exonerations due to DNA technology. A series of
high-profile exonerations – including those of Ronald Cotton,10 Terrence Garner,11 and
Daryl Hunt12 – galvanized the legal community, and the Chief Justice of the State called
a conference in October 2002 that led to the creation of a body called the North Carolina
Actual Innocence Commission (the NCAIC).13 The NCAIC’s original mission was to
study the issue of wrongful convictions and to make recommendations to “reduce or
eliminate the possibility of the wrongful conviction of an innocent person.”14 The
NCAIC’s first report summarized its research into the problem of erroneous eyewitness
testimony and recommended a number of specific reforms to eyewitness identification
procedures.15 Other states have also convened similar commissions to study systemic
problems leading to wrongful convictions.16 A number of those commissions produced
significant reports detailing the most salient causes of wrongful conviction, as well as
suggestions for improvements to law enforcement and trial procedures.17 Only the
NCAIC, however, recommended the creation of a standing state innocence commission –
10

See Wise et al, supra note 2, at 437 – 443 (discussing Ronald Cotton’s conviction and subsequent
exoneration).
11
Eli Paul Mazur, “I’m Innocent”: Addressing Freestanding Claims of Actual Innocence in State and
Federal Court, 25 N.C. CENT. L. J. 197 (2003) (analyzing post-conviction remedies with particular
reference to the failings of the courts in the case of Terrence Garner).
12
THE TRIALS OF DARYL HUNT (Break Thru Films 2006) (documentary film detailing Daryl Hunt’s false
conviction and eventual exoneration by DNA evidence).
13
Christine C. Mumma, The North Carolina Actual Innocence Commission: Uncommon Perspective
Joined by a Common Cause, 52 DRAKE L. REV. 647, 648 (2004). Chief Justice I. Beverly Lake, Jr., was
instrumental in the creation of North Carolina Innocence Inquiry Commission. See Ken Smith, Innocence
Commission is Lake’s Legacy, WRAL.com (Feb. 19, 2010), available at
http://www.wral.com/news/local/story/7084440/ (“Lake spent the early part of the decade championing the
formation of the panel after several high-profile cases in which people convicted in North Carolina courts
were shown to be innocent.”).
14
Mumma, supra note 13, at 650.
15
Id. at 653.
16
See The Innocence Project, Innocence Commissions in the U.S., at
http://www.innocenceproject.org/Content/415.php (last visited Feb. 20, 2010) (describing commissions
formed in California, Connecticut, Illinois, Wisconsin, and Pennsylvania).
17
See id.

6

a dedicated entity with the power to factually review individual convictions and to refer
worthy cases to further judicial review. And despite considerable political obstacles, the
state of North Carolina implemented the recommendation put forward by the NCAIC.18
In 2006, the North Carolina legislature passed, and the governor signed into law, a
bill establishing the North Carolina Innocence Inquiry Commission (the NCIIC).19
Modeled after a British body called the Criminal Cases Review Commission, the NCIIC
is an independent state agency with a statutory mandate “to investigate and determine
credible claims of factual innocence.”20 By design, it has the necessary investigatory and
subpoena power to conduct factual investigations,21 and when the Commission finds that
a prisoner’s claim of actual innocence is more probable than not, it forwards the case to a
dedicated three-judge panel chosen by the Chief Justice of the state.22 Only the threejudge panel has the authority to vacate the underlying conviction, and only if it finds that
the petitioner has proven his claim of innocence “by clear and convincing evidence.”23
On February 18, 2010, Greg Taylor, a North Carolina man serving a life sentence for the
1991 murder of a 26-year-old woman, became the first person ever exonerated through
the procedures of the NCIIC.24
The goal of this article is to explain the commission approach to the innocence
problem and to test it against criticisms both large and small. I begin by explaining the
18

See, e.g., Ruth Sheehan, He Fought to Fix Wrongs; Now He Waits, RALEIGH NEWS & OBSERVER (Feb.
10, 2010), available at http://www.newsobserver.com/news/counties/wake_county/story/330257.html?
(noting that many prosecutors and victims’ advocates vigorously opposed the creation of the North
Carolina Innocence Inquiry Commission)
19
Jerome M. Maiatico, All Eyes on Us: A Comparative Critique of the North Carolina Innocence Inquiry
Commission, 56 DUKE L.J. 1345, 1358 (2007) (noting that the bill creating the Commission passed the state
House and state Senate in July 2006 and that the governor signed the bill into law on Aug. 3, 2006).
20
N.C. Gen. Stat. § 15A-1461 (2010).
21
See § 15A-1467 – 68.
22
See § 15A-1469(a).
23
§ 15A-1469(h).
24
Mandy Locke, Historic Steps Lead Taylor to Freedom, RALEIGH NEWS & OBSERVER (Feb. 18, 2010),
available at http://www.newsobserver.com/news/counties/wake_county/story/344803.html?.

7

origins of the Innocence Problem in Section II and the history of the commission
approach in Section III. In Section IV, I canvas the major holistic criticisms of the
commission approach from both the Right and the Left. I argue that innocence
commissions represent a sensible and pragmatic step forward in the classic debate
between those who advocate for ever more generous collateral review and those who
doubt the need for further post-conviction procedures at all. The commission approach
cuts through the procedural morass that makes substantive factual review in court
virtually impossible for all but a lucky few, and it focuses attention where it should be –
on the merits of petitioners’ claims of actual innocence – rather than on peripheral
procedural issues. On the other hand, the commission approach does not create any new
Constitutional rights for petitioners, nor does it place any significant new burdens on the
state judiciary.25 It thus strikes the right balance between the values of finality and the
values of additional review and accuracy.
In Section V, I lay out the case for the specific advantages of the Commission
approach over court-based procedures. I argue that innocence commissions share the
merits of other single-focus agencies: namely, the development of subject-matter
expertise, the power to conduct extensive fact-finding, and the mandate to identify, and
recommend fixes for, systemic failures. In Section VI, I discuss some of the
disadvantages of the Commission approach – in particular, the great discretion afforded

25

The commission approach burdens the judiciary only in those rare cases where the Commission refers a
case to a three-judge panel for the ultimate decision on exoneration. So far, in just over three years of
operation, the Commission has referred only two cases to a judicial panel. See David Zucchino, North
Carolina Man Exonerated After 17 Years, L.A. TIMES (Feb. 18, 2010), available at
http://articles.latimes.com/2010/feb/17/nation/la-na-innocence18-2010feb18 (“Taylor’s case was only the
second to reach the three-judge panel, which is appointed by the chief justice of the state Supreme Court.”).

8

bureaucrats with very little accountability – and suggest several reforms of the
commission process to make it more procedurally fair and more accountable.
By itself, the commission approach cannot solve the Innocence Problem, for the
sources of wrongful conviction are too diverse, and not all errors can be caught after trial.
But North Carolina’s approach has the potential to recast the debate about the Innocence
Problem from one about Constitutional rights, the limits of habeas corpus, and judicial
resources to a pragmatic discussion of how an expert agency can best deliver accurate,
efficient, and accountable results. The North Carolina commission, along with the
process that brought it into existence, ought to serve as a model for other states as they
wrestle with the difficulties of the Innocence Problem.
Section II: Traditional Notions of Finality and the Creation of the Innocence
Problem

This section will explain (a) why fact-based post-conviction review is anomalous
within the Anglo-American criminal justice system and (b) why currently available postconviction review procedures – motions for retrial, habeas corpus, and the new wave of
DNA-inspired innocence statutes – do not provide sufficient solutions to the Innocence
Problem. American criminal law has traditionally refused to recognize the legitimacy of
post-conviction claims of innocence. The reasons for this traditional aversion are deeply
built into the Anglo-American criminal justice system and its adversarial structure.
First, in the division of labor between the judge and the jury, fact-finding has
traditionally been the province of the jury in our system.26 The role of the jury is so

26

See, e.g., WILLIAM BLACKSTONE, 3 COMMENTARIES *379-80 (“[T]he principles and axioms of law…
should be deposited in the breasts of the judges…. But in settling and adjusting a question of fact… a

9

sacrosanct that the Founders wrote it directly into the Constitution, giving criminal
defendants the right to a jury trial.27 Judges – both at the trial level and on appeal – are
thus understandably reluctant to usurp the jury’s role by second-guessing a factual
finding.28 The judge-jury division of labor is built into the trial process from the
beginning –judges often tell criminal juries explicitly that they are the fact-finders29 – and
there is a correspondingly high standard of review necessary for a trial judge or appellate
panel to reverse a jury’s fact-finding in a criminal case.30 Because of the jury’s role as
the sole fact-finder, fact-based appeals practically do not compute in the traditional model
of the Anglo-American trial.31 Indeed, the comparativist Mirjan Damaska finds the key
distinction between common-law and civil-law criminal systems in the contrast between
the common-law ideal of a flat, non-professional body of decision-makers and the

competent number of sensible and upright jurymen … will be found the best investigators of truth and the
surest guardians of public justice.”).
27
In fact, the right to a jury trial in criminal cases is set out in at least two places in the Constitution. U.S.
Const. art. III, § 2 (“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.”); U.S.
Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the state and district wherein the crime shall have been committed.”).
28
See, e.g., Lee v. Moore, 213 So. 2d 197, 198 (Ala. 1968) (arguing that a trial court’s power to grant
motions for new trial “should be hesitantly exercised, because the verdict of a jury results from one of the
most precious rights in our system of government, that is, the right of trial by jury.”); LAFAVE ET AL.,
CRIMINAL PROCEDURE (3d ed. 2000) (“Courts are naturally skeptical of claims that a defendant, fairly
convicted, with proper representation by counsel, should now be given a second opportunity because of
new information that has suddenly been acquires.”).
29
Judicial Council Of California, Criminal Jury Instructions, California Model Jury Instructions §200,
Duties of Judge and Jury (2009) (“You must decide what the facts are. It is up to all of you, and you alone
to decide what happened, based only on the evidence that has been presented to you in this trial.”).
30
In cases where the defendant appeals on the basis that there was “insufficient evidence” for the jury’s
verdict, “the relevant question [on appeal] is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). See generally Chad M. Oldfather,
Appellate Courts, Historical Facts, and the Civil-Criminal Distinction, 57 VAND. L. REV. 437 (2005)
(criticizing unduly high level of deference given to criminal jury’s findings of fact). In most states and in
the federal system, the trial court judge may order a “directed acquittal” before or after a jury verdict if he
or she finds the evidence so insufficient that no rational juror could vote for conviction. See LAFAVE ET AL,
supra note 28, at 1128; FED. R. CRIM. P. 29(a), (b).
31
John D. Jackson, Making Juries Accountable, 50 AM. J. COMP. L. 477 (2002) (“[O]ne feature that has
remained constant amid the many variations that have taken place throughout the common law world is the
jury’s relative lack of accountability to the legal system, the public and the parties in the case.”).

10

Continental ideal of a hierarchy of expert judicial decision-makers.32 The AngloAmerican system thus valorizes juries and devalues appeals, while the Continental
system prizes professional expertise and enforces professionalism through frequent
appeals to higher authority.33
Second, the procedures of our jury trials are thought to insure against wrongful
conviction. A jury may only vote to convict if the prosecution has proved its case
“beyond a reasonable doubt.”34 This is the highest standard of proof in our legal system,
and while there is much debate about its exact meaning, its signal to juries is clear: Vote
to convict only if you are very sure that the accused committed the crime.35 On the
conventional view, this rigorous standard of proof in criminal trials – as opposed to a
lower standard, such as “clear and convincing” or “more probably than not” – reflects the
high value our society places on convicting only the guilty.36 Indeed, on the standard
account, the whole bevy of procedural protections for the accused at trial do the work of
insuring that no innocent person is convicted. These protections include, but are not
limited to, the presumption of innocence,37 the right to confront one’s accuser,38 the rules

32

Mirjan Damaska, Structures of Authority and Comparative Criminal Procedure, 84 YALE L.J. 480
(1975) (distinguishing between the Continental “hierarchical” model and the Anglo-American “coordinate”
model of criminal justice and describing the jury as the “paradigmatic concept” of the Anglo-American
model).
33
See id.
34
See, e.g., Jackson, 443 U.S. at 309 (“The Constitution prohibits the criminal conviction of any person
except upon proof of guilt beyond a reasonable doubt.”).
35
The Supreme Court has shied away from defining the standard with any great precision. See, e.g., Victor
v. Nebraska, 511 U.S. 1, 5 (1994) (“[T]he Constitution does not require that any particular form of words
be used in advising the jury of the government’s burden of proof.”). But see Cage v. Louisiana, 498 U.S.
39, 41 (1990) (finding Louisiana jury instruction regarding reasonable doubt standard unconstitutional).
36
Patterson v. New York, 432 U.S. 197, 208 (1977) ( “The requirement of proof beyond a reasonable
doubt in a criminal case is ‘bottomed on a fundamental value determination of our society that it is far
worse to convict an innocent man than to let a guilty man go free.’”).
37
See, e.g., Osborne, 129 S. Ct. at 2320 (“At trial, the defendant is presumed innocent and may demand
that the government prove its case beyond reasonable doubt.”).
38
U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right… to be confronted
with the witness against him.”); FED. R. CRIM. P. 43(a).

11

of evidence,39 the right to counsel and to silence,40 and the right to an unbiased jury.41
These rules may serve a variety of purposes, but the primary justification for them all is
fairness to the accused. Critics on the Right routinely criticize these procedural
protections for letting criminals off on technicalities.42 Critics on the Left sometimes
argue that these protections are merely window-dressing in a system that convicts ninety
per cent of defendants via plea bargain.43 But on either view, the grand procedural
contraption that is the contemporary criminal trial is, in theory, a formidable bulwark
against wrongful conviction.
Third, the adversarial nature of the trial itself militates against fact-based
challenges to conviction, for the adversarial model treats the trial as a game with two
sides. In this model, the prosecution and the defendant are the two players, the judge is
the umpire, and the jury is ultimately the scorekeeper.44 The idea is that, so long as the
rules of procedure noted above are scrupulously adhered to, then the outcome of the

39

Each state system, as well as the federal government, maintains its own rules of evidence for use in
criminal trials. The Federal Rules of Evidence provides: “These rules shall be construed to secure fairness
in administration… to the end that the truth may be ascertained and proceedings justly determined.” FED. R.
EVID. 102.
40
U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to… have the
Assistance of Counsel for his defence.”); U.S. Const. amend. V (“No person… shall be compelled in any
criminal case to be a witness against himself.”).
41
U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”).
42
See, e.g., Deborah L. Rhode, Access to Justice: Again, Still, 73 FORDHAM L. REV. 1013, 1018 (2004)
(“About three-quarters of Americans think that too many defendants get off on ‘technicalities,’ a view
reinforced by Hollywood dramas and celebrity trials.”); Akhil Reed Amar, Fourth Amendment First
Principles, 107 HARV. L. REV. 757, 799 (1994) (“In the popular mind, the [Fourth] Amendment has lost its
luster and become associated with criminals getting off on crummy technicalities.”).
43
Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110
YALE L.J. 1097, 1150 n.330 (2001) (stating that 91% of adjudicated felony defendants plead guilty before
trial); Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CAL. L. REV. 652 (1981) (criticizing
the routinization of plea bargaining).
44
See, e.g., Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the
United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005) (“Judges are like
umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They
make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the
umpire.”).

12

game is valid. The judge may punish breaches of the rules and outright cheating.45 But
the judge, in this model, is no more interested in the outcome of the case than an umpire
is interested in who wins a baseball game. Instead, the game is meant to be won on the
skill of the players (the lawyers) rather than on an absolute notion of a “right” answer.46
On this adversarial model, the only legitimate challenge to a trial outcome is a charge that
the rules were not honored, and thus that the game was not procedurally fair. To claim
that the outcome of a trial was wrong – to make an innocence-based challenge –
presupposes a view that there is a right outcome to a trial. But, on the adversarial model,
to claim that a conviction was substantively wrong – wrong “as a matter of fact” – makes
about as much sense as claiming that the wrong team won a baseball game. In the gamemodel of the adversarial system, so long as all the rules were followed at trial, then there
is no such thing as a wrong outcome.
That these deep-seated features of our criminal justice system make innocencebased claims difficult to recognize is borne out by the history of criminal appeals and
post-conviction review. Criminal appeals as such scarcely existed in the federal system
prior to the 1880s,47 and while most states had a variety of mechanisms for reviewing
criminal convictions, appeals did not figure prominently as a mechanism for protecting

45

For example, the trial judge may declare a mistrial, or an appellate court may reverse a conviction, on
account of prosecutorial misconduct. See, e.g., United States v. Crutchfield, 26 F.3d 1098 (11th Cir. 1994)
(reversing and remanding conviction due to prosecutorial misconduct); see generally PROSECUTORIAL
MISCONDUCT § 12, 14 (2009) (describing sanctions for prosecutorial misconduct).
46
This adversarial model stands in contrast to the Continental model with its inquisitorial judge focused on
truth-seeking. See, e.g., Jenia Iontcheva Turner, Judicial Participation in Plea Negotiations: A
Comparative View, 54 AM. J. COMP. L. 199, 231-32 (“In contrast to continental Europe’s criminal
procedure, our system has traditionally been more concerned with ‘procedural’ rather than with
‘substantive’ truth. We are likely to accept the outcome of a criminal case as legitimate as long as it is
reached in conformity with procedural rules.”).
47
See David Rossman, “Were There No Appeal”: The History of Review in American Criminal Courts, 81
J. CRIM. L. & CRIMINOLOGY 518, 521 (1990) (“For roughly the first hundred years of the federal courts,
there was no right of review in criminal cases.”).

13

defendants’ rights.48 Today, by virtue of statute or state constitution, almost all American
criminal defendants enjoy one direct appeal as of right after conviction.49 The main
grounds for appeal are errors of law in the trial court – that is, assertions that the trial
court misstated or misapplied the rules of the game. Although most jurisdictions today
also recognize insufficiency of evidence as a ground for reversal on appeal, the standard
of review for such a claim is so strict that such appeals are virtually impossible to win.50
And because appellate courts have few mechanisms for independent fact-finding,
appellate judges are generally reliant on the trial record for fact-based determinations.51
After direct appeals are exhausted, the mechanisms for attacking a conviction are
all extraordinary and extremely narrow. The most famous of these mechanisms is, of
course, the Great Writ of Habeas Corpus, which today is really a synonym for the whole
system of constitutional, statutory, and common-law post-conviction review. And while
one might think that habeas would concern itself intensely with whether the prisoner is,
in fact, guilty or innocent, a free-standing claim of innocence is not a ground for habeas
relief.52 This is not the place to recount the entire history of habeas and its relation to
innocence claims, but a quick sketch is due. Habeas corpus, a process recognized in the

48

See id. at 543 – 48. For an overview of the history of the availability of criminal appeals in state and
federal courts in 18th and 19th century America, see id.
49
See LAFAVE ET AL, supra note 28, at 1256 (“[E]very state and the federal government provides some
means of appellate review…. In the federal system and in most states, statutes or state constitutional
provisions guarantee defendants in all felony cases a right to appellate review.”). But there is still no
recognized federal Constitutional right to criminal appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983)
(“There is, of course, no constitutional right to an appeal.”); see also Rossman, supra note 47, at 519 (“As
far as the Constitution is concerned, a state could eliminate everything but its trial courts.”).
50
See Jackson, supra note 30 (articulating standard of review for insufficiency of evidence claims).
51
For a discussion of the relative institutional competence of trial courts and appellate courts in fact-finding
in criminal cases, see Oldfather, supra note 30, at 444- 49.
52
See Herrera, 506 U.S. at 401 (“Few rulings would be more disruptive of our federal system than to
provide for federal habeas review of freestanding claims of actual innocence.”).

14

Constitution and for all intents and purposes codified into federal law,53 provides a
remedy for prisoners who can show that their detention is “in violation of the
Constitution or laws or treaties of the United States.”54 From the mid-1950s until the
mid-1970s, the scope of habeas review and the grounds for habeas relief grew
dramatically as the Warren Court constitutionalized more and more areas of criminal
procedure.55 But as habeas expanded, critics began to argue that it was undermining the
value of finality, vitiating the norm of federalism, and becoming too unwieldy, expensive,
and time-consuming.56
In this atmosphere, Judge Henry Friendly wrote an influential article arguing that
only prisoners with a “colorable claim of innocence” should be able to attack their
convictions collaterally.57 And he directly challenged “the assumption that simply
because a claim can be characterized as ‘constitutional,’ it should necessarily constitute a
basis for collateral attack.”58 Judge Friendly’s arguments were rooted in his concern that
the process of post-conviction review had become too cumbersome, with too many
grounds for relief, and too much procedural rigmarole. His call for a greater emphasis on

53

U.S. Const., art. I, § 9, cl. 2 (“The privilege of the writ of habeas corpus shall not be suspended, unless
when in cases of rebellion or invasion the public safety may require it.”). The federal habeas statute is
codified primarily between section 28 U.S.C. § 2241 - § 2255 (2006).
54
28 U.S.C. § 2254(a) (providing relief to state prisoners convicted or sentenced “in violation of the
Constitution or laws of the United States”). For federal prisoners, the analogous statute is 28 U.S.C. §
2255(a) (providing relief to federal prisoner convicted or sentenced “in violation of the Constitution or laws
of the United States”).
55
See, e.g., Erwin Chemirinsky, The Supreme Court, 1988 Term: The Vanishing Constitution, 103 HARV. L.
REV. 43, 55 (1989) (“[T]he Warren Court substantially expanded the availability of federal court habeas
corpus review for prisoners who claimed to be held in custody in violation of the Constitution or laws of
the United States.”).
56
For the two most influential articles decrying the mid-century expansion of habeas, discussed in more
detail below, see Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,
76 HARV. L. REV. 441 (1963) (focusing on the values of finality and federalism) and Henry J. Friendly,
Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV. 142 (1970)
(focusing on the expense of collateral review and the irrelevance of actual innocence in federal habeas).
57
See Friendly, supra note 56, at 142.
58
Id. at 156.

15

actual innocence over procedural violations would, he thought, dramatically cut down on
the number of habeas claims and, at the same time, focus attention on the most deserving
petitioners. His views were immensely influential in the academy and, to a certain extent,
on the judiciary.59 In its rhetoric, the Burger Court (1969 to 1986) “flirted incessantly”
with the idea of making guilt-or-innocence the lodestar of habeas review.60 For instance,
it refused to extend habeas relief to prisoners whose convictions rested on evidence
obtained in violation of the Fourth Amendment – in part because such an extension of the
exclusionary rule would deflect attention away from “the ultimate question of guilt or
innocence that should be the central concern in a criminal proceeding.”61 But, as Prof.
Michael Seidman persuasively argued, despite it rhetoric, the Burger Court “in fact firmly
committed itself to a process-oriented approach in which result played a decidedly
secondary role.”62 And when the push to reform habeas finally reached critical mass in
Congress, the resulting legislation did nothing to focus attention on the guilt-or-innocence
of petitioners, but instead erected further procedural barriers to habeas review.63 In other
words, both the expansion of habeas and its restriction had nothing to do with whether
habeas effectively picked out innocent prisoners for relief; rather it had to do with shifts
in consensus views about due process and federalism.
To this day, the Supreme Court has never recognized a claim of factual innocence
as an independent ground for a writ of habeas corpus. The 1993 case of Herrera v.

59

See. e.g., Louis Michael Seidman, Factual Guilt and the Burger Court: An Examination of Continuity
and Change in Criminal Procedure, 80 COLUM. L. REV. 436, 456 (1980) (citing Judge Friendly’s article as
“seminal”).
60
Id. at 449.
61
Stone v. Powell, 428 U.S. 465, 490 (1976).
62
Seidman , supra note 59, at 449.
63
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified as
amended in scattered sections of 8, 18, 22, 28, and 42 U.S.C.) (enacting, inter alia, strict rules for
successive habeas petitions).

16

Collins is still the Court’s most relevant opinion on point, and there the Court invoked the
principle that “federal habeas courts sit to ensure that individuals are not imprisoned in
violation of the Constitution – not to correct errors of fact.”64 Thus, “claims of actual
innocence based on newly discovered evidence have never been held to state a ground for
federal relief absent an independent constitutional violation occurring in the underlying
state criminal proceeding.”65 The Court went on to suggest that executive clemency is
the proper “fail safe” in our criminal justice system,66 and that clemency – rather than
habeas – is the “historic remedy for preventing miscarriages of justice where judicial
process has been exhausted.”67 To be sure, the Court famously refused to completely
close off the possibility that habeas relief might be warranted “in a capital case [upon] a
truly persuasive demonstration of ‘actual innocence’ made after trial.”68 But in the
sixteen years since Herrera, the Court has yet to find anyone who could meet the
“hypothetical freestanding innocence claim” that it has scrupulously avoided recognizing
or foreclosing.69 And in practice, that means that habeas litigants cannot bring a
challenge based on actual innocence.
Despite this history, the last twenty years have witnessed an extraordinary number
of exonerations due to DNA technologies – many have called it the most dramatic
development in criminal law in generations – and this development has not gone

64

Herrera, 506 U.S. at 400.
Id.
66
Id. at 415.
67
Id. at 412.
68
Id. at 417.
69
House v. Bell, 547 U.S. at 555 (“We conclude here, much as in Herrera, that whatever burden a
hypothetical freestanding innocence claim would require, this petitioner has not satisfied it.”). The Court
has created an innocence gateway that allows some habeas petitioners to cure otherwise fatal procedural
defaults if the petitioner can show that he or she is probably innocent. See Schlup v. Delo, 513 U.S. 298
(1995). The innocence gateway created by Schlup only allows petitioners to overcome procedural default
in order to pursue a claim of Constitutional error; it does not establish relief or a showing of innocence.
65

17

unnoticed by our courts or by state and federal legislators. As the Supreme Court
recently noted in Osborne, “[f]orty-six States have already enacted statutes dealing
specifically with access to DNA evidence.”70 And the federal government passed the
Innocence Protection Act of 2004.71 These statutes are all different from one another and
difficult to summarize. On the one hand, they represent a significant response to the
phenomenon of DNA-based exonerations, and they do open the door a crack to postconviction innocence-based challenges. On the other hand, these statutes so restrict the
type of claims that can be brought, the classes of prisoners who can bring such claims,
and the time-frame within which such challenges can be brought, that they fail to provide
the orderly mechanism for post-conviction relief that they promise.
First, almost all of these statutes restrict the availability of post-conviction
innocence review to claims based on DNA testing. Convicted persons who have viable
innocence claims based on new evidence other than DNA are categorically excluded.72
Second, the DNA testing necessary to mount an innocence claim under these statutes will
itself be granted only if the petitioner meets a threshold showing of “materiality” – that is,
a “reasonable probability… that the petitioner would not have been convicted if
exculpatory results has been obtained through DNA testing.”73 This standard, already
high, has been interpreted by many state courts to require “extraordinary circumstances”
70

Osborne, 129 S. Ct. at 2316. Almost all states also have a generic new trial motion, analogous to FED. R.
CRIM. P. 33, available during or after direct appeals. These new trial motions usually have strict and short
statute of limitations – typically from sixty days to three years – and such motions must be filed in the court
of original jurisdictions. Daniel S. Medwed, supra note 9, at 676. These motions have the benefit of
recognizing new evidence as a reason to revisit the underlying verdict, but the statute of limitations makes
such motions effectively unavailable for the vast majority of potential petitioners. Additionally, it is the
original trial judge who usually hears such motions, and the trial judge may be pre-disposed not to disturb a
verdict yielded from her own courtroom. Id. at 678.
71
Innocence Protection Act of 2004, P.L. No. 108-405,§§411-12, 118 Stat. 2260, 2278-85 (codified as
amended in scattered sections of 18 U.S.C. and 42 U.S.C.).
72
See Brandon L. Garrett, Claiming Innocence, 92 MINN. L. REV. 1629, 1679 (2008).
73
See id.

18

and is often used as an excuse to deny DNA testing when there is a hypothetical chance
that DNA evidence would not be dispositive.74 The Supreme Court itself recently ruled
that there is no constitutional right to DNA evidence, so denials of access to DNA
evidence are difficult to appeal.75 Furthermore, many innocence statutes categorically
bar claims from convicted persons who pled guilty at trial.76 Given the prevalence of
plea bargains, such a restriction effectively make over ninety per cent of convicted
persons ineligible for innocence-based challenges.77 Additionally, many states limit the
availability of their innocence statutes to a certain sub-class of serious crimes and to
petitioners still in custody.78 In sum, the new DNA innocence statutes continue to throw
up huge procedural barriers to whole classes of potentially meritorious challenges, and
they fail to create a clear procedure for innocence-based post-conviction review.

Section III: Innocence Commissions and the North Carolina Approach

Because of our system’s deep-seated aversion to innocence-based post-conviction
review, some states are now looking at a more novel idea – independent commissions
dedicated to post-conviction factual review. An innocence commission could come in
many different varieties, but the essential idea is that of an independent commission with
the power (a) to investigate the factual basis of existing convictions and (b) to refer
worthy cases to a judicial panel with the power to vacate the conviction. In this section, I
74

See id. at 1676-78
Osborne, 129 S. Ct. at 2321 – 23 (finding no procedural or substantive Due Process right to postconviction DNA evidence).
76
See Garrett, supra note 72, at 1679 – 80.
77
See Bibas, supra note 43, at 1150 n.330 (estimating a plea bargain rate of 91% for guilty verdicts).
78
See Garrett, supra note 72, at 1679 – 80; see also id. at 1719 (chart describing limitations imposed by
different state innocence statutes).
75

19

will summarize the history of the innocence commission idea and describe how the only
functioning innocence commission in the United States – the NCIIC – operates.

A. The British Criminal Cases Review Commission
The first innocence commission of the type contemplated in this Article came into
being in the United Kingdom. Why the UK, a country with a similar legal system and
with whom we share much legal history, came to adopt the commission approach earlier
than any American jurisdiction is an interesting story. After all, worries about false
convictions, particularly in death penalty cases, have been a point of concern in the
United States since at least the 1930s,79 while the issue became salient in the UK only in
the 1980s around the height of the Irish Troubles.80 A significant difference between the
two legal systems, however, is that appeals and post-conviction review were traditionally
even less available in the UK than in US jurisdictions.81 Before the Criminal Justice Act
of 1995, people convicted of crimes in the UK had one appeal available pursuant to the
Criminal Appeal Act of 1907, and no collateral review procedures were available.82 The
only mechanism for reviewing final convictions was a discretionary review by the Home
Secretary, who had the authority to refer extraordinary cases to the Court of Appeal if he

79

See, e.g., Edwin M. Borchard, CONVICTING THE INNOCENT: ERRORS OF CRIMINAL JUSTICE (1932)
(summarizing sixty-five cases of innocents convicted and suggesting legal reform to combat such
miscarriages of justice).
80
See, e.g., David Kyle, Correcting Miscarriages of Justice: The Role of the Criminal Cases Review
Commission, 52 DRAKE L. REV. 657, 657 - 659 (2004) (detailing high-profile cases of wrongful convictions
related to the Irish Troubles).
81
In the UK, regular criminal appeals did not exist until the Criminal Appeal Act of 1907, and even then,
the appellate courts interpreted their mandate narrowly. See Siobhan M. Keegan, The Criminal Cases
Review Commission’s Effectiveness in Handling Cases from Northern Ireland, 22 FORDHAM INT’L L.J.
1776, 1787 – 88 (1999).
82
THE ROYAL COMMISSION OF CRIMINAL JUSTICE REPORT 162 - 63 (1993) (Royal Commission Report); see
also David Horan, The Innocence Commission: An Independent Review Board for Wrongful Convictions,
20 N. ILL. U. L. REV. 91, 104-05 (discussing limited role of writ of habeas corpus in Britain).

20

determined that a miscarriage of justice may have occurred.83 But the Home Secretary
rarely invoked his power to refer cases.84 In the British system, the Home Secretary is
responsible for law and order and the national police force.85 He or she has almost no
incentive to appear “soft on crime” by prompting the reconsideration of final convictions.
Ironically, then, the British adoption of the Commission approach can be traced to its
very “backwardness” in the domain of post-conviction review prior to the 1990s.86
A number of high-profile exonerations in the 1980s and 1990s raised concerns in
the UK about the prevalence of wrongful convictions and the paucity of mechanisms to
correct them.87 In particular, the case of the so-called Birmingham Six – six Irish men
falsely convicted of bombing a pub in Birmingham – galvanized public opinion when
their convictions were overturned in 1991.88 In response, the British Home Secretary
created a blue-ribbon panel, the Royal Commission on Criminal Justice, and charged it
with the task of examining the causes of wrongful convictions and recommending better
procedures for dealing with such miscarriages of justice.89
Under then-existing British law, the only post-conviction review mechanism
available when substantial new evidence came to light was the authority of the Home

83

See Royal Commission Report, supra note 82, at 180.
Id. at 181.
85
Id. at 182 (“We have concluded that it is neither necessary nor desirable that the Home Secretary should
be directly responsible for the consideration and investigation of alleged miscarriages of justice as well as
being responsible for law and order and for the police.”).
86
One might describe the UK’s adoption of the CCRC in the 1990s as an example of “legal leapfrogging,”
whereby a country leapfrogs over intermediate stages of legal development directly to the most advanced
processes and technology. Cf. Jamais Cascio, Leapfrog 101, WORLDCHANGING (Dec. 15 2004), available
at http://www.worldchanging.com/archives/001743.html (last visited Feb. 26, 2010).
87
See Kyle, supra note 80, at 657 – 659 (noting high-profile cases of wrongful convictions, including the
Guildford Four, the Maguire Seven, and the Bridgewater Four); see also J. David Hirschel and William
Wakefield, CRIMINAL JUSTICE IN ENGLAND AND THE UNITED STATES 151 (1995).
88
See Royal Commission Report, supra note 82, at 1.
89
Id.
84

21

Secretary to refer cases to a Court of Appeal.90 The Home Secretary could refer cases
only if he or she determined that a miscarriage of justice may have taken place.91 The
Royal Commission found that the Home Secretary was ill-suited to the task of postconviction review because of structural contradictions. Because the Home Secretary was
symbolically the chief law enforcement agent of the government, with ultimate
responsibility for the national police and crime policy, he or she was inevitably reluctant
to expose failings or problems in the police and prosecution services.92 In addition, the
Royal Commission noted the constitutional incongruity of having the Home Secretary, a
member of the Government, functioning in a judicial capacity, as the arbiter of legal
relief.93 The Royal Commission found that the Home Secretary was aware of this
anomaly in the separation of powers and felt reluctant to invoke his referral power for
fear of unduly interfering in a coordinate branch of government.94 In fact, the Home
Secretary had referred only thirty-six cases between the years 1981 and the end of 1988,
an average of between four and five cases per year.95 Consequently, the Royal
Commission found a real likelihood that miscarriages of justice might slip through the
cracks, and it recommended taking the referral power away from the Home Secretary and
placing it instead in a new independent Criminal Case Review Authority (or CCRA).96
As envisioned by the Royal Commission, the CCRA would be “operationally
independent” of both the Government and the Court of Appeal, but it would be required

90

Id. at 180.
Id. at 181.
92
Id. at 182; see also Horan, supra note 82, at 112 (“Understandably, acting as ‘both judge and jury in its
own cause,’ the Home Office was not ‘very eager’ to expose the failings or misconduct of its own police or
forensic scientists in obtaining wrongful convictions.”).
93
See Royal Commission Report, supra note 82, at 182.
94
Id.
95
Id. at 181.
96
Id. at 182.
91

22

to submit an annual report to the Government.97 The CCRA would have the capacity and
authority to direct police investigations – or, in some instances, conduct investigations on
its own –into the cases under review.98 Only cases in which normal appeals were
exhausted would be accepted by the CCRA.99 The Royal Commission proposed that the
CCRA have the authority to refer worthy cases to the Court of Appeal, though the CCRA
itself would not have the fundamentally judicial power of acquittal.100 Upon such referral,
the Court of Appeal would conduct an evidentiary hearing and take any action it deemed
necessary, be it upholding the conviction, quashing it, or ordering a new trial.101
Parliament adopted the recommendations of the Royal Commission in 1995 as
part of the Criminal Justice Act,102 and two years later, a newly-formed Criminal Cases
Review Commission (CCRC) began operations.103 Today, the CCRC is headed by
eleven Commissioners, at least four of whom must be lawyers, appointed to five-year
terms by the Queen upon recommendation of the Prime Minister.104 A group of roughly
one hundred staff-members, including about fifty Case Managers, perform most of the
day-to-day functions of the Commission, including in-take, case review, and directing
investigations.105 Anybody convicted of a criminal offense in England, Wales, or
Northern Ireland is eligible to apply for review,106 though applications are not accepted if

97

Id. at 183.
Id. at 186.
99
Id. at 184.
100
Id. at 183- 84.
101
Id.
102
Criminal Appeal Act, 1995, c. 35, 8 (Eng.).
103
See Kyle, supra note 82, at 661 - 62.
104
See Kent Roach, The Role of Innocence Commissions: Error Discovery, Systemic Reform, or Both?, 85
CHI.-KENT L. REV. 89, 94 (2010).
105
CCRC, About Us, available at http://www.ccrc.gov.uk/about.htm (last visited Feb. 27, 2010).
106
There is a separate Scottish Commission for Scottish offenders. See Scottish Criminal Cases Review
Commission, available at http://www.sccrc.org.uk/home.aspx.
98

23

the applicant is still awaiting a decision on his or her appeal.107 Cases that meet the
threshold eligibility criteria are categorized into one of four categories (A through D)
based on the complexity of the issues, and the case is “allocated to a named caseworker
who will carry out the review.”108
The case review can take as little as a few weeks or longer than a year, depending
on the complexity of the issues, and the case worker has the authority to direct the police
to conduct specific investigations and to obtain documents from any public body.109
When the caseworker has completed the case review, the case is referred to a
Commissioner or a panel of Commissioners to decide whether or not sufficient grounds
exist to refer the case to the Court of Appeal.110 The standard of review at this stage is
“whether there is a real possibility that the conviction . . . would not be upheld.”111 A
panel of at least three Commissioners must meet before any case may be referred to the
Court of Appeal, though a single Commissioner may send out a provisional rejection.112
If a panel of Commissioners decides that there is a “real possibility” that the conviction
would not be upheld, it then issues a Statement of Reasons and formally refers the case to
the Court of Appeal.113 At that point, the Commission’s involvement in the case is
usually over.114 If, on the other hand, a Commissioner determines that a case does not
meet the “real possibility” standard, then a provisional rejection notice, along with a
107

CCRC, How We Review Your Case, available at http://www.ccrc.gov.uk/canwe/canwe_33.htm (last
visited March 8, 2010).
108
Id.
109
See Roach, supra note 104, at 96.
110
CCRC, How We Review Your Case, available at http://www.ccrc.gov.uk/canwe/canwe_33.htm (last
visited March 8, 2010).
111
Criminal Appeal Act, 1995, c. 35, § 13.
112
See Roach, supra note 104, at 94.
113
Criminal Appeal Act, 1995, c. 35, § 13.
114
Lisa Griffin, Correcting Injustice: Studying How the United States and the United Kingdom Review
Claims of Innocence, 41 U. TOL. L. REV. 107, 113 (2009). The Commission does not represent applicants
at the Court of Appeals. Id.

24

Statement of Reasons, will be sent to the applicant.115 The applicant then has twenty
business days to respond to the provisional rejection with any supplemental information
or arguments. After reviewing any response from the applicant, the Commissioner/s will
once again determine whether referral is appropriate.116 If so, the case will be referred to
the Court of Appeals with a Statement of Reasons. If not, then a final rejection and
Statement of Reasons is issued to the applicant.117 There is no judicial appeal as such
from a rejection, but applicants may challenge the rejection in court as they would any
other administrative action by an agency for being “perverse or absurd.”118
If a case is referred to the Court of Appeal, the Court has the benefit of the
Statement of Reasons from the Commission. But the Crown Prosecution Service has the
right to defend the conviction if it so chooses, and the Court – sitting as a three-judge
panel –has the ability to call a hearing and entertain evidence outside of the record.119
After such a hearing, the Court of Appeal has the sole authority to quash a conviction,
uphold it, or take any other action it deems just.120 Such decisions are made by majority
vote.
The British CCRC has functioned for over a decade now, and while it has endured
some domestic criticism,121 it has won over many early critics from both the Right and
Left, and its future seems secure.122 As of January 31, 2010, the CCRC has taken in a

115

CCRC, How We Review Your Case, available at http://www.ccrc.gov.uk/canwe/canwe_33.htm (last
visited March 8, 2010).
116
Id.
117
Id.
118
Lisa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, 16 AM. U. INT’L L.
REV. 1241, 1280 (2001).
119
R. v. Craven, 2 Crim. App. R. 12, 196 (C.A. 2001) (holding that, upon referral from the CCRC, the
Crown Prosecution Service may introduce new evidence).
120
See Griffin, supra note 114, at 114.
121
See Maiatico, supra note 19, at 1367.
122
Id.

25

total of 12,376 applications.123 Of those, it has referred 445 cases to the Court of Appeal,
which in turn has heard 411 of those cases.124 Of those 411 cases, the Court of Appeal
has quashed 290, upheld 118, and has reserved judgment on three awaiting further
hearing.125 In sum, the Court of Appeal has quashed convictions in close to threequarters of the cases it has received from the CCRC.
B. Innocence Commissions in the United States
During the years that the British were busy studying the problem of false
conviction and creating the CCRC, the issue attracted scant attention in the United States.
In part, this is because the 1970s and 1980s were a period of increasing crime and, not
coincidentally, a period when “tough on crime” policies were popular with a broad swath
of citizenry.126 And in part, American criminal defense lawyers and advocates held out
hope that the existing system of post-conviction review – what I have called the habeas
system – could be used to guard against wrongful convictions. Three developments in
the early 1990s changed the atmosphere in the United States. First, crime rates began to
dramatically decline, taking with them the power of “law and order” as a campaign
issue.127 Second, the increasing sophistication and use of DNA evidence uncovered

123

CCRC, Case Statistics, available at http://www.ccrc.gov.uk/cases/case_44.htm (last visited March 8,
2010).
124
Id.
125
Id.
126
See, e.g., Marc Mauer, Why Are Tough on Crime Policies So Popular?, 11 STAN. L. & POL’Y REV 9, 1012 (1999) (charting the evolution of tough on crime policies); Christopher J. Tyson, At the Intersection of
Race and History: The Unique Relationship between the Davis Intent Requirement and the Crack Laws, 50
How. L.J. 345 (2007) (discussing the implicit connection between “tough on crime” political rhetoric and
racial politics).
127
See Mauer, supra note 126, at 10 (“In 1998 the FBI announced that serious crime had declined by 3
percent in 1997, continuing a six-year trend during which violent crime was down by 19 percent and
overall crime by 17 percent.”).

26

numerous cases of unambiguously false convictions.128 And, third, the Supreme Court’s
decision in Herrera shattered whatever hope was left that the habeas system itself could
be counted on to investigate fact-based miscarriages of justice.
Of the three developments, the rise of DNA evidence has been by far the greatest
factor prompting a new look at the efficacy of post-conviction procedures.129 It has
galvanized groups in civil society, most prominently the Innocence Project, to advocate
on behalf of individuals and for systemic reforms, and these efforts have borne some
fruit.130 There is no jurisdiction in the country that has not been affected by the
extraordinary power of DNA evidence, from new investigatory procedures, to new rules
of evidence, to new criminal defense strategies.131 As discussed in Section II, since 1997,
forty-six states and the federal government have passed statutes making DNA evidence
available, within strict limits, to convicted people with colorable claims of innocence.132
And, in some states, the momentum for reform has gone even further, resulting in the
establishment of various commissions and working groups to study the causes of
wrongful conviction and offer recommendations, along the lines of the Royal
Commission in the UK.
So far, at least six states – North Carolina, Virginia, Wisconsin, Illinois,
Connecticut, and California – have convened some form of commission to study the

128

JON B. GOULD, THE INNOCENCE COMMISSION: PREVENTING WRONGFUL CONVICTIONS AND RESTORING
THE CRIMINAL JUSTICE SYSTEM 16 (2008) (“The renewed interest in wrongful convictions was catapulted

forward by the introduction of DNA testing in the late 1990s.”).
129
Id. (“DNA Changes Everything.”).
130
The Innocence Project, About Us, available at http://www.innocenceproject.org/about/ (last visited Feb.
27, 2010).
131
Paul C. Giannelli, The DNA Story: An Alternative View, 88 J. CRIM. L. & CRIMINOLOGY 380, 380-381
(1997).
132
Osborne, 129 S. Ct. at 2316,

27

problem of post-conviction review.133 The factors motivating these commissions and
their exact make-up and mission have differed from state to state, but they have all
conducted extensive studies into the problem of wrongful convictions, and most of them
have resulted in legislative reform and/or changes in law-enforcement procedures. In
Illinois, for instance, following a number of high-profile death-row exonerations,
Governor George Ryan instituted a moratorium on executions and established the
Governor’s Commission on Capital Punishment.134 In 2003, the Illinois legislature
passed legislation adopting some of the eighty-five recommendations of the Governor’s
Commission, though many of the Commission’s recommendations remain unexecuted.135
In Wisconsin in 2003, a Republican legislator and a former public defender together
convened a panel – the so-called “Avery Task Force” – to study and recommend criminal
justice reforms. 136 The bipartisan panel successfully ushered a bill through the
Wisconsin legislature reflecting its recommendations for minimizing the number of
wrongful convictions.137 The California Commission of the Fair Administration of
Justice, by sheer dint of the size of the state, had perhaps the best opportunity to effect
substantial change in the American criminal justice system, but its success is not yet

133

See supra, note 16.
See Dirk Johnson, No Executions in Illinois Until System is Repaired, N.Y. TIMES (May 20, 2000),
available at http://www.nytimes.com/2000/05/21/us/no-executions-in-illinois-until-system-isrepaired.html? (last visited March 1, 2010). The Illinois case is unique in that it represented unilateral
action on the part of the Governor and because its focus was solely on capital punishment. Id.
135
See Thomas P. Sullivan, Preventing Wrongful Convictions: A Current Report from Illinois, 52 DRAKE L.
REV. 605 (2004).
136
See GOULD, supra note 128, at 234; Avery Task Force Examines Wrongful Convictions, 78 WISCONSIN
LAWYER 7 (July 2005). Spearheaded by Keith Findley and State Representative Mark Gundrum, the task
force was a direct response to the exoneration of Steve Avery after seventeen years of incarceration for an
assault he did not commit. see generally Katherine R. Kruse, Instituting Innocence Reform: Wisconsin’s
New Governance Experiment, 2006 WIS. L. REV. 645, 704 - 713 (2006).
137
See Assemb. B. 648, 2004-2005 Leg., Reg. Sess. (Wis. 2005), available
at http://www.law.wisc.edu/fjr/innocence/05-34921.pdf.; see generally Kruse, supra note 136.
134

28

clear.138 State commissions have usually focused on studying and offering
recommendations related to the now-familiar list of the major causes of wrongful
conviction: false confessions, eyewitness misidentification, false informant testimony,
unproven or misused forensic technology, prosecutorial misconduct, and poor defense
lawyering.139 There is reason to hope that the commissions’ recommendations, if adopted,
will promote improvements throughout the criminal justice system – improvements both
in limiting wrongful convictions and in finding the real criminal perpetrators.
None of the commissions I have described so far resembles the British CCRC, for
none of them had the mandate to investigate individual cases. In fact, the original North
Carolina Actual Innocence Commission (the NCAIC) resembled the other state
commissions in that respect. As in the UK and in other American jurisdictions, the
impetus for the creation of the NCAIC was a string of dramatic DNA-based exonerations
of wrongfully convicted individuals in the state prison system.140 The driving force
behind the creation of North Carolina’s commission was the interest and energy of the
Chief Justice of the state Supreme Court I. Beverly Lake Jr.141 Chief Justice Lake,
known as “a conservative Republican,”142 invited representatives from law enforcement
agencies, the criminal defense bar, and legal academia to a meeting in October 2002 to

138

So far, the only recommendations that have made it through the state legislature have been vetoed by
Gov. Schwarzenegger. See Radley Balko, Three Vetoes: Gov. Schwarzenegger nixes sensible criminal
justice reforms, REASON MAGAZINE (Nov. 8, 2007), available at
http://reason.com/archives/2007/11/08/three-vetoes (last visited March 1, 2010).
139
See Innocence Project, The Causes of Wrongful Conviction, available at
http://www.innocenceproject.org/understand/ (last visited March 8, 2010).
140
See Maiatico, supra note 19, at 1345 – 46.
141
Id. at 1356.
142
Henry Weinstein, North Carolina to Weigh Claims of Innocence, L.A. TIMES (Aug, 4, 2006), available
at http://articles.latimes.com/2006/aug/04/nation/na-innocence4 (describing Chief Justice Lake as “a
conservative Republican”).

29

discuss the topic of wrongful convictions.143 The meeting ended with a commitment on
the part of participants to establish a commission to study in depth the problems they had
discussed.144 The Chief Justice took the initiative in setting up the Commission, applying
for a grant of state funds from the Governor’s Crime Commission, and naming the
members.145
The NCAIC began operations in early 2003 with thirty-one members,
representing all parts of the criminal justice system.146 Its overall mandate, similar to that
of other state commissions, was “to make recommendations which reduce or eliminate
the possibility of wrongful conviction of an innocent person.”147 Its Mission Statement
called for the study of a wide range of topics, including “eyewitness identification
procedures, DNA evidence/testing, false confessions, discovery and disclosure,... rules of
professional conduct and their interplay with innocence, and the post conviction review
of claims of actual innocence.”148 It was the NCAIC’s treatment of the final item on this
list – post-conviction review of claims of actual innocence – that has set North Carolina’s
criminal reform agenda apart from that of other states.
It is significant that the Mission Statement of the NCAIC defined the problem of
wrongful conviction with reference both to prisoners exonerated by DNA evidence and

143

See Mumma, supra note 13, at 648.
Id. at 649.
145
Id. at 652. (“The Crime Commission is a pass-through agency supporting criminal justice from several
federal sources that fund North Carolina law enforcement and related nonprofit agencies.”).
146
Id. at 650 - 51. The NCAIC included representatives from the judiciary, the Governor’s office, the
defense bar, law enforcement, prosecutors’ offices, legal academia, victim advocates, and members of the
general public. Id.
147
Id. at 650.
148
NCAIC, Mission Statement § 5 (2003), available at
http://www.innocenceproject.org/docs/NC_Innocence_Commission_Mission.html (last visited March 1,
2010).
144

30

prisoners exonerated without DNA evidence.149 Consequently, the search for reform in
post-conviction procedure was not limited to DNA-related issues, as it has been in so
many other states. To the contrary, the NCAIC defined the problem broadly as wrongful
conviction, and it quickly concluded that North Carolina lacked the necessary procedures
and fora for reviewing fact-based claims of actual evidence.150 NCAIC members
“familiarized themselves with the United Kingdom’s Criminal Cases Review
Commission (CCRC).”151 And after much debate, the members voted 19-9 in favor of
proposing an innocence commission modeled after the CCRC.152 Voting against it were
the victim advocates and a few law-enforcement representatives.153

C. The North Carolina Innocence Inquiry Commission: How It Works
The North Carolina legislature passed the bill setting up the North Carolina
Innocence Inquiry Commission (NCIIC) in July 2006, the Governor signed it the
following month,154 and the Commission began accepting innocence claims on
November 1, 2006.155 While the legislature made a few changes to the NCAIC’s
proposal, the bill set up a commission substantially along the lines proposed by the
NCAIC.156 Specifically, the Act created a commission of eight members to be composed
of one superior court judge, one prosecutor, one criminal defense attorney, one “victim
149

Id. at § 5. (“Exoneration cases in North Carolina include Ronald Cotton, Leslie Jean, Leo Waters all of
whom were exonerated by DNA; and Terrence Garner, Charles Munsey, and Tim Hennis, whose
exonerations were not based on DNA.”).
150
See Mumma, supra note 13, at 654.
151
Id. at 653.
152
See Maiatico, supra note 19, at 1357.
153
Telephone Interview with Richard Rosen, Professor Of Law, University of North Carolina School of
Law (July 20, 2009) (notes on file with author).
154
See Maiatico, supra note 19, at 1358.
155
John Rubin, University of North Carolina School of Government, Innocence Commission, 2007
ADMINISTRATION OF JUSTICE BULLETIN 3, 10 (Jan. 2007), available at
http://www.sog.unc.edu/pubs/electronicversions/pdfs/aojb0703.pdf (last visited March 8, 2010).
156
See Maiatico, supra note 19, at 1358.

31

advocate,” one sheriff, one member of the general public, and two people to be appointed
at the discretion of the Chief Justice.157 The Chief Justice of the Supreme Court and the
Chief Judge of the Court of Appeals share the power to appoint the members pursuant to
a formula described in the statute.158 The Commission chair is the one superior court
judge, and each Commission member has equal voting weight.159 In addition, the
Commission is empowered to hire – and has hired – an executive director and other staff
to carry out day-to-day administrative, investigatory, record-keeping, and other tasks.160
All claims addressed to the Commission must be from, or on behalf of, a living
person who was convicted of a felony in a North Carolina state court and who claims that
he or she is completely factually innocent of the crime for which he or she was
convicted.161 The statute defines a “claim of factual innocence” as a claim “asserting the
complete innocence of any criminal responsibility for the felony for which the person
was convicted and for any other reduced level of criminal responsibility relating to the
crime, and for which there is some credible, verifiable evidence of innocence that has not
previously been presented at trial or considered at a hearing granted through
postconviction relief.”162
The threshold criteria implied by those definitions are as follows:
(1) The Commission will not inquire into claims on behalf of deceased
individuals;

157

See N.C. Gen. Stat. § 15A-1463(a).
See § 15A-1463(a).
159
See § 15A-1463(c).
160
See § 15A-1465(a) –(b).
161
See § 15A-1460(1).
162
§ 15A-1460(1).
158

32

(2) Only convictions for felonies, and not for misdemeanors, are subject to
commission review;
(3) Only convictions handed down by the General Court of Justice of the State of
North Carolina are subject to review;
(4) Claims of constitutional, legal, or procedural defects in the process leading to
conviction are not subject to Commission review; only claims of factual innocence will
be entertained;
(5) The petitioner must present “credible, verifiable evidence of innocence” that
was not presented at trial or at a relevant post-conviction review hearing; and
(6) Only claims of complete factual innocence will be reviewed, meaning that
applicants must claim that they are innocent of the offense for which they were convicted
and for any other criminal offenses related to the same crime.163
In addition to the appointed Commissioners, the Commission is composed of an
executive director and a staff of seven.164 The total budget for the Commission is
roughly $375,000 per year, and the Commission has also received an additional federal
grant of half a million dollars specifically for improving DNA testing.165
The executive director and staff of the Commission utilize the six criteria noted
above to screen applications that come in the door. In addition, before the Commission
staff will begin any review of the case, the convicted person must give consent for the
review and fill out a questionnaire. Many convicted persons fail to return the consent

163

See § 15A-1460(1). For instance, a claim that one is responsible only for manslaughter, rather than
homicide in the first degree, with respect to a killing is not considered a claim of factual innocence by the
Commission.
164
NCIIC, About Us, available at http://www.innocencecommission-nc.gov/commissioners.htm (last
visited March 5, 2010).
165
See Roach, supra note 104, at 103.

33

form and the initial questionnaire.166 Before launching a “formal inquiry,” the
Commission staff gathers relevant legal documents and background about the case, and
may even do some preliminary factual investigation, to determine whether the application
meets the criteria.167 The vast majority of claims are rejected before a formal inquiry
begins because the application fails to meet one criteria or the other.168 In such cases, the
claim is rejected, and no further action is taken. A rejected applicant has no right to
appeal a rejection from the Commission in any court or in any other forum.169 As of
March 2010, out of a total of 635 applications, only twelve (less than two per cent of all
claims) had met the criteria for “formal inquiry.”170
Moreover, the Commission will not begin a formal inquiry into a case unless and
until “the convicted person waives his or her procedural safeguards and privileges, agrees
to cooperate with the Commission, and agrees to provide full disclosure regarding all
inquiry requirements of the Commission.”171 The rights and safeguards that an applicant
must give up include “the right against self-incrimination, attorney-client privilege,
spousal privilege, patient-physician privilege, priest-penitent privilege, and other types of
privileged communication.”172 And the statute adds that “[i]f, at any point during an

166

Telephone Interview with Kendra Montgomery-Blinn, Executive Director, NCIIC (July 19, 2009) (notes
on file with author).
167
NCIIC, Case Progression Flowchart, available at http://www.innocencecommissionnc.gov/Flowchart.htm (last visited March 5, 2010).
168
NCIIC, Case Statistics, available at http://www.innocencecommission-nc.gov/statistics.htm (last visited
March 5, 2010).
169
§ 15A-1470(a) (“[D]ecisions of the Commission and of the three-judge panel are final and are not
subject to further review by appeal, certification, writ, motion, or otherwise.”).
170
Anne Blythe, Taylor Case Brings Commission Renown, RALEIGH NEWS & OBSERVER (Feb. 22, 2010),
available at http://www.newsobserver.com/2010/02/22/351527/taylor-case-brings-commission.html (“Less
than 2 percent of all claims are accepted for a formal commission inquiry.”); NCIIC, Case Statistics,
available at http://www.innocencecommission-nc.gov/statistics.htm (last visited March 5, 2010).
171
§ 15A-1467(b).
172
Chris Mumma, Guidelines for Counsel Appointed by Indigent Defense Services (Aug. 14, 2007)
(pamphlet on file with author). The waiver of such rights and privileges “does not apply to matters
unrelated to a convicted person’s claim of innocence.” § 15A-1467(a).

34

inquiry, the convicted person refuses to comply with requests of the Commission or is
otherwise deemed to be uncooperative by the Commission, the Commission shall
discontinue the inquiry.”173 In short, an applicant must waive rights that are taken for
granted in the adversarial process, must pledge complete cooperation with the
Commission, and must maintain such cooperation throughout the inquiry. Only then –
and only if the applicant meets all of the other criteria noted above – will the Commission
launch a formal inquiry.
Once the Commission begins a formal inquiry, it has the power to “issue process
to compel the attendance of witnesses and the production of evidence, administer oaths,..
and prescribe its own rules of procedure.”174 In addition, it can obtain information
through any of the procedures available in the Criminal Procedures Act or the Rules of
Civil Procedure.175 A formal inquiry is not an adversarial proceeding. To the contrary, it
is a Commission-driven fact-finding inquiry that has more in common with the
“inquisitorial approach” of Continental civil-law systems than the adversarial approach of
the traditional Anglo-American trial. The Commission staff drives the process, searching
for and compelling disclosure of information as it sees fit.176 There is no role for the
prosecutor or for an applicant’s counsel in the formal inquiry process; they are on the
sidelines. And in sharp contrast to the public nature of a criminal trial, none of the
records or proceedings of the Commission are subject to the public record and public
meeting laws.177 Indeed, all such records and proceedings are confidential, with the sole
173

§ 15A-1467(g).
§ 15A-1467(d).
175
§ 15A-1467(d).
176
In the summer of 2009, the legislature granted the Commission the power to compel testimony from
witnesses and to offer limited immunity in exchange for such testimony. See Ch. SL 2009-360 (signed by
the Governor July 27, 2009).
177
§ 15A-1468(e).
174

35

exception that if the Commission votes to refer the case to a special three-judge panel,
then all supporting records, files, and transcripts of hearings will become public.178
When a formal inquiry comes to an end, the Commissioners hold hearings –
public or private, at their discretion – to determine whether “there is sufficient evidence
of factual innocence to merit judicial review.”179 At the end of the hearing, all eight
Commissioners vote, and in order for the case to clear the commission and go on to
judicial review, five or more Commissioners must vote in favor of referral.180 If the
convicted person had pled guilty at trial, however, then all eight commissioners must
unanimously vote in favor of referral.181 If the case does not pass the necessary fiveperson majority (or unanimity in the case of a guilty plea), then the Commission “shall
document that opinion, along with supporting findings of fact” and send those documents
to the trial court and the district attorney’s office in the district of original jurisdiction.182
At that point, the case is closed.
If, however, the case does clear the five-person majority (or unanimity in the case
of a guilty plea), then the commission will refer the case to the Chief Justice, who will in
turn appoint a special three-judge panel to conduct an evidentiary hearing on the
matter.183 Back in front of the three-judge panel for an evidentiary hearing, the process
becomes recognizably adversarial again, with state prosecutors representing the State and

178

Id. In addition, if a formal inquiry uncovers evidence of criminality on the part of the applicant related
to the case under review, then such evidence will be provided to the prosecution, and if a formal inquiry
uncovers evidence favorable to the applicant’s claim of innocence, then such evidence will be provided to
the applicant and his attorney. § 15A-1468(d).
179
§ 15A-1468(c).
180
Id.
181
Id.
182
Id.
183
§ 15A-1469(a). The three-judge panel must not include any judge with “substantial previous experience
in the case” to insure impartiality. Id.

36

the applicant’s attorney arguing his client’s innocence.184 The standard of review in front
of the judicial panel is “whether the convicted person has proved by clear and convincing
evidence that [he or she] is innocent of the charges.”185 The conviction will be vacated
only if all three judges on the panel find that the applicant has met the “clear and
convincing” standard of actual innocence.186 Anything less than a unanimous panel
results in a denial of relief, and there is no appeal from the three-judge panel’s verdict.187
To date, only three cases have made it though formal inquiry to a vote in front of
the eight-member Commission, and the Commission has voted only two cases through to
the three-judge panel.188 The three-judge panel denied relief to the first petitioner whose
case the Commission referred.189 The petitioner in that case challenged his conviction for
molesting his six-year-old daughter. Since the trial, the daughter had recanted her
original testimony, and she and her siblings testified that their grandmother had coached
her into testifying against her father at trial.190 The three-judge panel in that case found
that the applicant did not meet the “clear and convincing” standard of proof.
The second case to reach the three-judge panel was a high-profile murder case. In
1993, Greg Taylor was convicted of murder in the beating death of Jacquetta Thomas in
Raleigh, North Carolina.191 The body of the murder victim was found near a truck that

184

§ 15A-1469(d). However, even at this stage, the three-judge panel has the power to compel testimony
from the applicant, and the applicant may not assert any privilege or prevent any witness from testifying. §
15A-1469(d).
185
§ 15A-1469(h).
186
Id.
187
Id.
188
NCIIC, Case Statistics, available at http://www.innocencecommission-nc.gov/statistics.htm (last visited
March 5, 2010).
189
NCIIC, News Release, Man’s Conviction Upheld in Innocence Hearing (Sep. 3, 2008), available at
http://www.innocencecommission-nc.gov/inthenews.htm (last visited March 8, 2010).
190
Id.
191
See Mandy Locke, Historic Steps Lead Taylor to Freedom, RALEIGH NEWS & OBSERVER (Feb. 18,
2010), available at http://www.newsobserver.com/news/counties/wake_county/story/344803.html? (last
visited March 8, 2010).

37

belonged to Taylor, and he was convicted primarily on evidence that blood from the
victim’s body was found in his truck and testimony from a jailhouse informant.192 Taylor
maintained his innocence throughout the trial and in numerous post-conviction hearings,
but he had exhausted all his appeals and collateral review options by 2004.193 He filed a
claim with the Commission, and after formal inquiry, the Commission voted
unanimously to refer his case to the three-judge panel – in large part on the strength of
new evidence showing that the victim’s blood was not, in fact, on his truck and that
contemporaneous blood lab reports to that effect had been covered up at trial.194 After six
dramatic days of testimony in front of the judicial panel in February 2010, the court
found that Taylor had demonstrated “clear and convincing” evidence of actual innocence,
dismissed his conviction, and set him free.195 The exoneration of Greg Taylor has raised
the profile of the Commission and ignited new interest in its procedures.196

Section IV: Holistic Criticisms

The NCIIC is the first commission of its kind in the United States, and almost
everything about it – from its inception to its composition to its procedures – can be fairly
debated. In this section, I will present and assess the most powerful holistic criticisms of
the North Carolina Commission, the criticisms that bear most directly on the question:
Does the commission model represent a real improvement over the status quo? Not all of
192

See Many Locke, In Taylor Case, Blood is the Issue, RALEIGH NEWS & OBSERVER (Feb. 11, 2010),
available at http://www.newsobserver.com/2010/02/11/332181/in-taylor-case-blood-is-the-issue.html? (last
visited March 8, 2010).
193
See Locke, supra note 191.
194
See Locke, supra note 192.
195
See Locke, supra note 191.
196
See Blythe, supra note 170.

38

these criticisms fit into a tidy model, but for organizational purposes, I will group the
criticisms into two broad categories: first those from the Right and then those from the
Left. I use those terms here in the colloquial way they are often invoked in discussions of
criminal justice, the “Right” representing a more conservative, law-and-order, proprosecution perspective,197 and the “Left” representing a reform-minded, fairness-focused,
pro-defense perspective.198
The fundamental clash of values animating most discussions of post-conviction
review is the clash between the norm of finality, on the one hand, and the values of
additional review on the other.199 The Court often speaks explicitly about “balancing”
the interests served by finality against the interests asserted by litigants in additional
review.200 Predictably, the more liberal members of the court tend to come down on the
side of further review, and the more conservative members tend to come down on the
side of enforcing finality. The battle in each case is over how much damage additional
review would inflict on finality and whether that damage is worth the benefits of review.
In this section, I will begin by summarizing the general arguments in favor of finality
before detailing and assessing the main Right-wing criticisms of the Commission

197

What I am calling the Right-wing perspective here is often called the “Crime Control” model of criminal
justice. See HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 163-65 (1968) (describing the
Due Process and Crime Control models of criminal procedure).
198
And what I am calling the Left-wing perspective here is often called the “Due Process” model. Id.
199
Finality is, of course, identified with the Right-wing perspective, and additional review with the Leftwing perspective.
200
See, e.g., Herrera, 506 U.S. at 438 (Blackmun, J., dissenting) (“The Court sought to strike
a balance between the State’s interest in the finality of its criminal judgments and the prisoner’s interest in
access to a forum to test the basic justice of his sentence.”). McCleskey v. Zant, 499 U.S. 467, 520 (1991)
(Marshall, J., dissenting) (“[T]he test for identifying an abuse must strike an
appropriate balance between finality and review in that setting.”); Kuhlmann v. Wilson, 477 U.S. 436, 452
(1986) (“Balanced against the prisoner’s interest in access to a forum to test the basic justice of his
confinement are the interests of the State in administration of its criminal statutes. Finality serves many of
those important interests.”).

39

approach. Then, I will summarize the general arguments in favor of additional review
before detailing and assessing the Left’s major criticism of the Commission approach.201
A. Criticism from the Right: Taking Finality Seriously
Simply put, many on the Right will argue that the innocence commission
approach goes too far on the side of unfettered review and does too much damage to the
interests served by finality in criminal law. By most accounts, those interests – which I
will discuss in more detail below – include most prominently (a) judicial economy, (b)
the aims of punishment, (c) general repose, and (d) incentivizing robust trials.
Judicial economy – or “conservation of resources” as Prof. Paul Bator called it –
is, for many, the primary justification for finality.202 The basic idea is that our criminal
justice system – indeed, any human system – has limited resources with which to fulfill
its tasks and that all efforts should be made to wring unnecessary procedures out of the
system. “If a job can be well done once, it should not be done twice…. Why duplicate
effort?” Prof. Bator asked.203 Any incremental increase in review adds to already
overwhelmed courts’ dockets, increases expenses, and takes away resources from
adjudication of newer and more pressing matters.204 Without some very compelling
reasons, the argument goes, there should be a presumption against dedicating more
resources to disputes already authoritatively decided by the criminal justice system.
201

My own view is that the clash between the norms animating finality and those that counsel in favor of
increased review cannot be determined in any neutral, logical way. The values at stake on each side are
legitimate, though they are largely incommensurable; there is no single meta-value by which we can judge
when we need marginally more finality or marginally more review. I do not, therefore, propose to locate,
through an exercise in logic, exactly where we ought to draw the line on the finality-review spectrum. But
it is important to understand the equities on both sides of the issue to understand the costs and benefits of
the innocence commission approach and to better understand the strengths and weaknesses of arguments on
both sides.
202
See Bator, supra note 56, at 451.
203
Id.
204
See Friendly, supra note 56, at 148 (“The most serious single evil with today’s proliferation of collateral
attack is its drain upon the resources of the community – judges, prosecutors, and attorneys appointed to aid
the accused, and even of that oft-overlooked necessity, courtrooms.”).

40

Second, many argue that finality is a necessary pre-condition for achieving the
ends of punishment, no matter what one believes those ultimate ends to be. “Surely it is
essential to the educational and deterrent functions of the criminal law that we be able to
say that one violating that law will swiftly and certainly become subject to punishment,
just punishment,” wrote Prof. Bator.205 There must be some point at which a conviction
becomes irreversible and punishment inevitable if punishment is to effectively act as any
sort of deterrent or if any retribution is to be had. Moreover, an “endless reopening of
convictions, with its continuing underlying implication that perhaps the defendant can
escape from corrective sanctions after all” is inconsistent with the rehabilitative goals of
punishment, which requires the “realization by the convict that he is justly subject to
reeducation and treatment in the first place.”206 The idea here is that all adjudication of
the dispute must end – that is, conviction must be final – before the aims of punishment
can begin to have any effect.
Related to the idea of finality-as-precondition-for-punishment is the idea of
finality-as-repose. Repose is a difficult concept to pin down, as even those who
emphasize it admit. Judge Friendly described it as the “human desire that things must
sometime come to an end.”207 Prof. Bator spoke of repose as a “psychological necessity”
and contrasted it with “perpetual and unreasoned anxiety.”208 A legal system is not
fulfilling its social function if it fails at some point to put to rest the bulk of legal disputes,
for the society has a profound need to move on from such disputes. Both Judge Friendly
and Prof. Bator took pains to emphasize that repose is not just a fancy way to describe

205

See Bator, supra note 56, at 452.
Id.
207
See Friendly, supra note 56, at 149.
208
See Bator, supra note 56, at 453.
206

41

“mere complacency.”209 Rather, for both of them, repose is a state of reasonable
psychological security (or closure) that allows a society and its members to “leave[] well
enough alone” and “channel[] our limited resources of concern toward more productive
ends.”210 While there is some overlap here with the idea of judicial economy, the
emphasis of finality-as-repose is not on conserving the physical or monetary resources of
a society, but rather its psychological or spiritual energy. On this account, repose is a
society’s basic conviction that it has resolved past disputes and can now take on new
tasks.211
Finally, some argue that a commitment to finality is part and parcel of a
commitment to the criminal trial of first instance. First, there is the worry that trial
judges – and we might add, trial juries – might not put a sufficient amount of effort into
the matters before them if they think that they are engaged in mere “suggestion-making”
rather than authoritative decision-making.212 Prof. Bator “could imagine nothing more
subversive of a judge’s sense of responsibility” than “the notion that all the shots will
209

Id.; Friendly, supra note 56, at 149. Implicitly, the difference between repose and complacency is that
the latter indicates a general lack of concern about whether justice is being done. Repose is a state in
which one is fairly confident that justice has been done. Why the confidence that there are so few innocent
people being convicted? Because, on this account, the system is designed to err on the side of innocence.
As Prof. Hazard put it, “The presumption of innocence, the privilege against self-incrimination, the right to
counsel, and all the rest of the legal protections given an accused are means to lead the system into
regularly making Type II errors.” Geoffrey C. Hazard, Jr., Preclusion in a Federal System: Reflections on
the Substance of Finality, 70 CORNELL L. REV. 642, 651 (1985).
210
Bator, supra note 56, at 453.
211
The value of repose is most clear when one thinks of a crime victim and/or his or her loved ones. It
must be terribly upsetting to see the person that the court system has already found guilty of the crime reopen the case years after trial and appeal. From the perspective of the convicted person (even a falsely
convicted person), there may also be some psychological benefit to knowing that the “fight” over the
conviction has, or will, come to an end. For it is only after that end-point has been reached that the
convicted person can turn his full attention to other concerns in life. Finally, there is broad agreement that
for many criminal cases, the sheer passage of time makes accurate determinations of guilt or innocence
more difficult. Finality acts as a general bar against re-litigation of an issue long after memories have faded,
evidence has gone stale, and files have been lost. It gives prosecutors the assurance that there is a point
after which they no longer have to keep proving the legitimacy of the conviction. In this sense, finality-asrepose serves a similar function to routine statutes of limitation – it lets the legal status quo be so that
everybody in the system can go on to the next issue.
212
Hazard, supra note 209, at 650.

42

always be called by someone else.”213 The idea here is that the system needs to invest
some decision-maker(s) – namely, the trial judge and jury – with sufficient final authority
to impress upon them the weight of their responsibility. Any increase in the ability of the
litigants to re-open the case post-trial necessarily diminishes the trial court’s authority
and thus undermines its sense of responsibility. At the same time, there is a worry that
the litigants themselves will invest less time and energy into the trial process to the extent
that final decisions are, in fact, made at some later point in the process. “The prospect of
relitigation,” Judge Easterbrook has written, “would reduce the effective stakes of the
first case, leading to an erosion in accuracy.”214 Because the trial is precisely the
procedure in our system best suited for thrashing out the issues at stake in litigation,
especially issues of fact, parties to the criminal case should “concentrate their energies
and resources on getting things right the first time.”215 The availability of post-conviction
review, on this account, saps the urgency out of trials, and thus does real damage to the
most important and most comprehensive forum of decision-making in the whole system.
I have laid out these conventional accounts of finality to show that a general
presumption against revision – that is, against more post-conviction review – is supported
by a constellation of important social interests. There are real costs, both tangible and
intangible, to re-opening final convictions to review, and “second-guessing merely for the
sake of second-guessing” is not a sufficient reason to create collateral procedures.216 Of
course, a single focus on the norm of finality is not tenable, for the criminal justice
213

Bator, supra note 56, at 451. Geoffrey Hazard asked, “what if everything a trial judge does is in
principle merely provisional, subject to approval by higher authority, both as to substance and as to
technical regularity? In that model of system the first instance functionary epitomizes the low level
bureaucrat…. they are not treated as judges.” Hazard, supra note 209, at 650.
214
United States v. Keane, 852 F.2d 199, 201 (7th Cir. 1988).
215
Id.
216
Bator, supra note 56, at 451.

43

system must also endeavor to meet other ends – among them, accuracy, fairness, and
fidelity to Constitutional norms. But for critics on the Right, the commission approach to
collateral review runs roughshod over traditional notions of finality, and thus represents
an anomaly in our criminal justice system. In the next four sub-sections, I will sketch the
major versions of the finality-based criticism of the commission approach and assess the
strength of the claims.
1. All Post-Conviction Factual Review Is Categorically Unnecessary
The unstated premise at the root of the commission approach is that there ought to
be some post-conviction mechanism available for reviewing a freestanding claim of
actual innocence. An attack on this premise is the most fundamental criticism that can be
brought against the commission approach, and dealing with this criticism entails entering
into some of the most profound debates about the nature of post-conviction review. What
are the purposes of post-conviction review, and what procedures (if any) best fulfill those
purposes?
Paul Bator’s 1963 article Finality in Criminal Law and Federal Habeas Corpus
for State Prisoners is a good place to enter the debate, for although the bulk of his article
is devoted to the thorny issue of federalism,217 his discussion of the concept of finality
has been a hugely influential articulation of the conservative position on post-conviction
review.218 He began his analysis with the observation that “the possibility of error” is

217

See Bator, supra note 56, at 463 – 83. For understandable reasons, the issue of federalism has dominated
discussions of post-conviction review in the United States. The commission approach, however, does not
directly implicate issues of federalism, for commissions are creatures of the same sovereign as the
convicting authority (the state) – as opposed to federal courts sitting in judgment of state-level convictions.
One can imagine, however, future cases in which the actions of a state innocence commission may
themselves be at issue in federal habeas cases.
218
Supreme Court opinions have cited Prof. Bator’s article over twenty times. See, e.g., Danforth v.
Minnesota, 552 U.S. 264, 272 n.6 (2008); Stone v. Powell, 428 U.S. 465, 494 n. 35 (1976). Prof. Bator, it
bears remembering, wrote Finality in Criminal Law in the early 1950s, a time when the scope of federal

44

“inherent in any process.”219 Consequently, “if the existence vel non of a mistake
determines the lawfulness of the judgment, [then] there can be no escape from a literally
endless relitigation of the merits because the possibility of mistake always exists.”220 In
order to escape this endless relitigation, “the notion of legality must at some point include
the assignment of final competences to determine legality.”221 This is a classic statement
of the principle of finality – the notion that a functioning legal system must, at some point,
come to a final and irreversible decision regarding the dispute in front of it. “Somehow,
somewhere,” wrote Prof. Bator, “we must accept the fact that human institutions are short
of infallible; there is reason for a policy that leaves well enough alone and which
channels our limited resources of concern toward more productive ends.”222
Applying this view of finality, Prof. Bator argued that “if one set of institutions
has been granted the task of finding the facts and applying the law and does so in a
manner rationally adapted to the task, in the absence of institutional or functional reasons
to the contrary we should accept a presumption against mere repetition of the process on
the alleged ground that, after all, error could have occurred.”223 In our system, it is the
task of the jury to find the facts and that of judges to articulate the law. Thus, the only
habeas corpus was dramatically widening and the number of habeas filings was increasing. In particular,
Prof. Bator’s article criticized the watershed case of Brown v. Allen, 344 U.S. 443 (1953), which held that
federal courts had discretion to “redetermine the merits of federal constitutional questions [already] decided
in state criminal proceedings.” Brown, 344 U.S. at 507. Prof. Bator argued that Brown had imprudently
(and ahistorically) expanded the scope of federal habeas beyond its proper bounds. See Bator, supra note
56, at 443 - 44. But it is Prof. Bator’s more general discussion of finality in the criminal law that is of
interest to us here.
219
Bator, supra note 56, at 447.
220
Id.
221
Id. at 450 - 51.
222
Id. at 453.
223
Id. at 454. This is also a re-articulation of the principle of institutional settlement: “[D]ecisions which
were the duly arrived at result of duly established procedures… ought to be accepted as binding upon the
whole society unless and until they are duly changed.” HENRY M. HART, JR. & ALBERT M. SACKS, THE
LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATIONS OF LAW 4 (tent. ed. 1958) (William
N. Eskridge, Jr. & Philip P. Frickey eds., 1994) Prof. Bator’s writings are suffused with the precepts of the
Legal Process school.

45

legitimate issue that can be raised after a trial is “whether the conditions and tools of the
inquiry were such as to assure a reasoned probability that the facts were correctly found
and the law correctly applied” – in other words, “whether the processes previously
employed for determination of questions of fact and law were fairly and rationally
adapted to that task.”224 On Prof. Bator’s account, then, a “failure of process” at trial is a
legitimate reason for revisiting a conviction, and he offered up the scenarios of a bribed
judge, a mob-dominated jury, or a defendant tortured into pleading guilty as paradigmatic
examples of “failure of process.”225 A “‘trial’ under such circumstances,” he wrote, “is
not a rational method of inquiry into questions of fact or law, and no reason exists to
respect its conclusions.”226 But unless there is reason to doubt that the trial process was
rational or fair, then there is no reason to think that any further process would yield any
more accurate result. We can sum up the argument thus: Determining guilt or innocence
is the institutional function of the trial court; so long as the trial itself is fair and free of
procedural errors, there is no reason to “second-guess” the jury’s verdict.227 A straight-

224

Bator, supra note 56, at 455. This is another classic statement of Legal Process theory, which holds that
it is the institutional competence of courts in providing procedural regularity that gives their decisions
legitimacy. What legitimates court decisions, on this account, is not substantive justice, but rather the
provision of procedural regularity.
225
Bator, supra note 56, at 455.
226
Id.
227
To be clear, Prof. Bator’s position does not rest on any unwarranted belief in the infallibility of juries.
He admitted from the outset that “there is no ultimate guarantee that any tribunal arrived at the correct
result.” Id. at 447 But, from precisely this insight, he argued, there is no reason to believe that a second
review of a case is any more likely to result in the “correct” decision than the first review (i.e., the trial.).
Id. Whatever system of appeals and collateral review we choose to set up, he argued, cannot “be validated
by the assertion that it is logically necessary if the ‘truth’ is to be established,” for again, there is no
“ultimate guarantee” that any tribunal or any process of review will produce the truth. Id. at 449.
Interestingly, Prof. Bator’s argument can be read not only as a as a classic statement of the
principle of finality, but also as a classic statement of the Due Process model of criminal procedure.
Normally, of course, we think of commentators advocating finality as adherents of the Crime Control
model. But Prof. Bator saw procedural failure as a legitimate rationale – indeed, the sole legitimate
rationale – for collateral review for any review of the trial verdict. In that sense, he was an archproceduralist.

46

forward claim of factual innocence, untethered to any claim of procedural error, simply
has no place in this system.
Paul Bator’s argument against a freestanding post-conviction claim of factual
innocence is logically consistent and pragmatic in its eschewal of transcendent truth and
in its sensitivity to the role of existing institutions.228 But too much has changed since the
early 1960s for Prof. Bator’s brand of proceduralism to carry the day. Perhaps in 1963, a
hard-nosed Harvard Law School professor could bite the proverbial bullet and accept a
miniscule number of false convictions as a tragic but inevitable product of any human
system of criminal justice.229 But a contemporary defender of Prof. Bator’s argument
would have a considerably more bitter bullet to bite down on. The advent of DNA
technology and the subsequent exoneration of more than 250 convicted persons has
changed the terms of debate. First, the number of people convicted for crimes they did
not have any part in – a number which may have appeared de minimis in 1963 – now
appears to be considerable.230 It is one thing to be serene about the possibility of a tiny
number of innocent people serving jail-time; it is quite another to know that hundreds of
convicted people, including many on death row,231 have been found factually innocent
and that many experts believe that those hundreds represent the tip of the iceberg.232
Second, the proposition that a later fact-finding inquiry is unlikely to be any more

228

Indeed, it is still the “winning” argument insofar as a freestanding post-conviction innocence claim is
still not recognized as a right under federal or state law.
229
Bator, supra note 56, at 453. (“Somehow, somewhere, we must accept the fact that human institutions
are short of infallible.”).
230
The precise number is, of course, unknown and perhaps unknowable. See supra note 2.
231
The Death Penalty Information Center counts 139 death row exonerations since 1973. DPIC, Facts
About the Death Penalty, available at http://www.deathpenaltyinfo.org/home (“Death Penalty Fact Sheet”)
(last visited March 6, 2010). The Innocence Project, which counts only those released pursuant to new
DNA evidence, claims seventeen death row exonerations due to DNA evidence alone. Innocence Project,
Case Profiles, available at http://www.innocenceproject.org/know/ (last visited on March 6, 2010).
232
See, e.g., Brandon Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 62 (2008).

47

accurate than an earlier inquiry is belied by the power of new forensic technologies. In
the age of DNA evidence, it is no longer credible to argue that post-conviction
procedures are just as likely to result in error as trials conducted years before.
In retrospect, what Prof. Bator failed to acknowledge or foresee in his argument is
the way in which new and credible evidence can cast legitimate doubt on the verdict of
the trial, quite apart from any procedural defect. One need not believe all the hype
surrounding DNA evidence to recognize that it represents a powerful and credible
forensic tool and that it can achieve levels of accuracy in identification heretofore
impossible. But DNA evidence is simply the most dramatic token of a more mundane
phenomenon – the appearance, years after the trial, of credible evidence calling into
question the factual basis of the conviction. New evidence can take the form of new alibi
reports, new videotape evidence, recanted testimony, and captured computer screen-shots.
Prof. Bator’s discussion of finality did not consider any of these possibilities.233 As the
North Carolina commission makes “credible, verifiable” new facts a threshold criteria of
review,234 it confronts Prof. Bator’s arguments precisely at his weakest point – indeed,
precisely where he has refused to offer an argument.235
We simply know that too many innocent people have been convicted, and we
know that contemporary forensic technology can yield dispositive information unknown
at the time of trial. Moreover, we are no longer comfortable privileging procedural

233

Geoffrey Hazard makes a similar mistake when he argues against Prof. Resnick’s suggestions that more
collateral review is necessary. “More words and more law, but no more facts,” he writes in evident disgust.
Hazard, supra note 209, at 651. But the commission approach makes new facts the sine qua non of
Commission review and takes as its very task the uncovering of more facts about the original crime.
Indeed, under the commission approach, no more law is brought to bear on the crime at all; only new facts
matter.
234
§ 15A-1460(1).
235
Of course, it is not fair to criticize Prof. Bator for not directly addressing the innocence commission
model; no such thing existed in his lifetime.

48

regularity and institutional competence over ultimate results. The categorical denial of
any judicial relief to the factually-innocent-but-duly-convicted is no longer a tenable
position.
2. Innocence Commissions Are Too Costly
Most critics on the Right admit that some mechanism for post-conviction factual
review may be necessary in extraordinary circumstances, but will argue on cost-benefit
grounds that the creation of a free-standing innocence commission – especially one with
such loose procedural standards – is too large an investment in additional review. The
cost-benefit criticism comes in many flavors, but the basic claim is that the small-but-real
benefits provided by an innocence commission are simply outweighed by the costs of the
commission. The focus of this type of criticism is not the principle of post-conviction
factual review, but rather its cost.
It is no trivial matter to set up, staff, and administer a new state commission.
There is a selection process for commissioners, a professional staff to hire, office space to
find, internal procedures to initiate – all the usual costs of starting a new state institution.
Moreover, the very job of the institution (factual investigation and research) is labor- and
resource-intensive. So the start-up and operational costs are considerable.236 At the same
time, the relative procedural looseness of the commission approach means that the
commission will inevitably spend a considerable amount of time on unmeritorious cases.
Indeed, the NCIIC has cast aside almost all of the traditional procedural bars to postconviction review: there are no custody requirements, no statutes of limitation, no bars to
successive petitions, and of course, no requirements to append a constitutional claim.
The reason to be rid of these traditional procedural “gate-keepers” is that they prevent
236

See supra notes164 – 165 and accompanying text.

49

meritorious cases from reaching review on the merits. But the cost-benefit critique
demands that each procedural liberalization cost no more in judicial resources than the
value of the benefits it is likely to achieve in reversing wrongful convictions.
The cost-benefit analysis has added bite if one assumes, as Prof. Erik Lillquist
does, that there is a “generally fixed” amount of resources available for or within any
criminal justice system.237 Thus, the creation and operation of an innocence commission
“necessarily shifts” resources from other sources within the criminal justice system to the
commissions themselves.238 On this view, then, innocence commissions may not only
fail a general cost-benefit analysis, but may also siphon off resources from more
efficacious parts of the criminal justice system. Lillquist, for instance, argues that the
very existence of the innocence commission renders those professionals who take part in
its proceedings – lawyers, judges, and other law-enforcement personnel – unavailable to
the rest of the criminal justice system.239 All that the commission does is take scarce
resources and re-allocate them away from more efficient and more important sectors –
e.g., first-instance trials – to an untested and inefficient sector, the new commission.240
Under this more exacting standard, then, innocence commissions must prove not only
that their benefits exceed their costs, but also that their net benefits are greater than the
net benefits of other parts of the criminal justice system. This is a criticism, then, driven
by both judicial economy concerns and a deep sense that the right place to focus

237

Erik Lillquist, Improving Accuracy in Criminal Cases, 41 U. RICH. L. REV. 897, 909 (2007)..
Id.
239
Id. at 909 – 10.
240
The most likely net result, Lillquist argues, is an overall “decrease in accuracy” in the justice system. Id.
at 909. Why? Because, after the establishment of an innocence commission, the legal resources of the state
– particularly its human capital – is spread even thinner over the remaining cases it confronts. Id.
238

50

resources is on the initial trial, when the issues are still fresh, rather than on collateral
procedures.
There is, of course, some real limit to the amount of resources that any society can
or should allocate to providing post-conviction factual review. The question is whether
the innocence commission approach demands too much. Since its inception in late 2006,
the NCIIC has cost the State of North Carolina between $200,000 and $400,000 per
year.241 As of March 2010, it had received 635 petitions, processed over 460 cases, and
referred three cases to the three-judge panel .242 So far, only one person, Greg Taylor,
has achieved exoneration through the commission process. Over a million dollars spent
for a single exoneration – at first blush, this record might suggest that the Commission is
not worth the cost.
The problem with this mode of analysis is that, as rational as it purports to be, it
cannot yield answers when both costs and benefits are denominated in anything other
than dollars. In the case of innocence commissions, the costs are more than just the
dollar-value of the time and resources spent on operating the commissions; there is also
the cost to the value of finality and the interests it serves. And the benefits are more than
the dollar-value of releasing an innocent person from prison;243 there are also the benefits
to the values of accuracy, systemic legitimacy, and professionalism. There is no way to
tally up the value units on either side of the equation and come out with a neutral
determination of whether innocence commissions are worth the price. There is also no
241

See Roach, supra note 104, at 103.
NCIIC, Case Statistics, available at http://www.innocencecommission-nc.gov/statistics.htm (last visited
March 5, 2010).
243
Incarceration of the innocent costs money, too. Estimates of the annual cost of imprisoning one person
in North Carolina range from $21,597 for “minimum custody” to $31,273 for “close custody.” N.C.
Department of Corrections, Cost of Supervision, available at http://www.doc.state.nc.us/dop/cost/ (last
visited on March 6, 2010); see also N.C. Department of Corrections, Glossary, available at
http://www.doc.state.nc.us/r&p/GLOSSARY.HTM (last visited on March 6, 2010).
242

51

way to compare the systemic benefits of the innocence commission to the benefits that
could otherwise be generated by spending the same resources in another part of the
criminal justice system. Nobody doubts that police departments, prosecutors, public
defenders, trial courts, and correctional facilities could all benefit from an injection of
resources. But it is not at all clear that the same expenditure of resources currently going
to the NCIIC would yield greater systemic benefits if it went to those already-existing
institutions. The cost-benefit criticism demands a level of quantitative ability that is not
only difficult but conceptually impossible when the units of measurement include values
in addition to dollars and cents.
Additionally, the monetary costs of creating an innocence commission by statute
are almost certainly lower than the costs of a judicially created right to factual review. A
court-based right of review would trigger the full panoply of procedural rights for the
petitioner. The parties themselves would control the process, and the court system would
have to endure whatever costs that the parties have a right to extract. The commission
approach actually allows the legislature to maintain greater fiscal control of the entire
process – from specifying commission procedures, to allocating budgets, to monitoring
the commission’s efficiency and efficacy. And a new commission, created and funded by
a state legislature, is likely to be more responsive to legislative concerns about cost than
the already-existing independent judicial system. In sum, once there is broad agreement
that some post-conviction factual review procedure is necessary, there is good reason to
think that the commission approach is more fiscally prudent than additional court-based
approaches.

52

3. Innocence Commissions Will Not Increase Accuracy
The spur for creating innocence commissions rests, in part, on the knowledge that
trial courts sometimes make mistakes and that innocent people are occasionally convicted
for crimes they did not commit. This knowledge suggests a couple of corollaries – first,
that the commission itself will occasionally make mistakes and find someone innocent
who, in fact, committed the crime and, second, that trial courts occasionally acquit guilty
defendants. 244 Critics of the innocence commission approach have seized on both of
these corollaries to argue that (a) the commission will lead to wrongful exonerations and
(b) that it will do nothing to prevent wrongful acquittals at trial. On this account, then,
the commission fails on its own terms to increase systemic accuracy.
Some argue that there is a real danger that innocence commissions will lead to
“wrongful vindications” of factually guilty persons, thus leading the criminal justice
system even further away from accuracy.245 Indeed, on this account, innocence
commissions may have real institutional incentives to find cases of wrongful conviction
even where none exist. According to standard public choice analysis, state institutions
tend to do what is necessary to justify their continued existence.246 In the case of
innocence commissions, the purported function they fulfill is to find innocence where the
rest of the criminal justice system wrongfully found guilt. On this account, the best –
perhaps the only – evidence that the commission is doing its job is, thus, the actual
finding of wrongful convictions. Those attracted to working for the commission and its
promoters will be hoping that the commission exposes the kind of spectacular cases that
244

The commission model does not allow the commission itself to vacate guilty verdicts, but rather to
recommend an evidentiary hearing in front of a specially-designated court. Only the court has the power to
vacate the conviction.
245
See Lillquist, supra note 237, at 908.
246
See, e.g., THOMAS O. MCGARITY, REINVENTING RATIONALITY: THE ROLE OF REGULATORY ANALYSIS
IN THE FEDERAL BUREAUCRACY 10 (1991) (explaining the essential elements of rational decisionmaking).

53

prompted the creation of the commission in the first place.247 Politicians and judicial
officials will all be looking for evidence that the money spent on the commissions is
worth it; state legislators in particular need good reasons to continue to fund a novel and
independent state institution. For the commission, there would be no better way to prove
its worth than to expose wrongful convictions that the rest of the criminal justice system
was unable to uncover. Consequently, critics can argue, the commission will have an
innate bias toward finding wrongful convictions whatever the technical burden of proof
might be.248 The result is an intolerably high risk of wrongly vindicating the guilty. 249
The risk that the commission would be biased in favor of leniency might be
mitigated if its mandate also included the factual review of acquittals. But, of course,
innocence commissions represent a “one-way ratchet” – they allow for review of
convictions, but not for the review of acquittals. 250 Consequently, even if the
commission succeeds in overturning a few genuinely wrongful convictions, it cannot
succeed in overturning wrongful acquittals. Thus, on this argument, the commissions tilt
the criminal justice system ever more in favor of leniency and betray their purported
rationale of accuracy. Everyone agrees, of course, that the current understanding of the
Double Jeopardy Clause makes it impossible to re-prosecute a defendant for a crime of

247

In fact, the exoneration of Greg Taylor led a number of proponents of the Commission to proclaim its
value. See Blythe, supra note 170.
248
Indeed, the very name “innocence commission” suggests that the commission is there to find the
innocent. Note that the British commission is called the Criminal Case Review Commission in part to
combat the perception that it has a bias toward finding innocence.
249
The possibility that innocence commissions will occasionally clear guilty criminals might be a standalone argument against them, or it might factor in to a more complex argument about the relative benefits
and costs of the commission approach. Alternatively, it could serve to push internal commission
procedures to be more restrictive than those, in fact, adopted by North Carolina. In any guise, the
possibility of commission error resulting in the wrongful vindication of a guilty person is one that cuts
against any liberalization of post-conviction review.
250
See Lillquist, supra note 237, at 910.

54

which he has been acquitted.251 But, the argument goes, if the animating principle
behind innocence commissions is to increase the accuracy of the criminal justice system
– to insure that the labels guilty and innocent are properly assigned – then proponents of
innocence commissions in principle ought to be in favor of similar review of acquittals,
especially where new evidence suggests that the defendant did, in fact, commit the crime.
The lack of any serious push to create “guilt commissions” looks to some on the Right as
an example of liberal hypocrisy – a simple preference for clearing defendants from
criminal liability, rather than a serious concern for accurate law enforcement.
It is true that the creation of innocence commissions raises the chances that an
actually guilty person may be mistakenly exonerated for his crime. But the chances of
such a mistake remain infinitesimally small. Under the NCIIC system, a petitioner must
bring forward new, credible, and verifiable evidence of innocence that is so persuasive
that it sways the initial NCIIC staff-member who reviews the case, members of the
NCIIC formal investigation team, five out of eight Commissioners (or eight out of eight
Commissioners in the case of a guilty plea), and all three judges on the special judicial
panel. All three judges at the ultimate stage must be convinced of the petitioner’s
innocence by a positive “clear and convincing” standard. Even Prof. Lillquist, a
Commission skeptic, agrees that the chances of vindicating a guilty person are “fairly
trivial.”252
In addition, the argument that there is an institutional incentive to find someone –
anyone – innocent is belied by the actual institutional composition of the Commission
and the incentives it faces. Even if one suspects that overly idealistic staff-members
251

See, e.g., North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (holding that the Double Jeopardy Clause
precludes a second prosecution for the same offense after acquittal).
252
Lillquist, supra note 237, at 908.

55

might be inclined to push cases forward, the Commission itself has no inclination or
incentive to refer unworthy cases to the three-judge panel. First, among the
Commissioners are a victim advocate, a sheriff, a prosecutor, and a superior court
judge.253 They each have a stake in making sure that the interests of the crime victim, the
prosecution, and the judicial function are respected in the process; all of these interests
counsel against disturbing the conviction.254 Among the remaining Commissioners is
only one person whose professional description indicates a skepticism toward guilty
verdicts, the criminal defense attorney. But none of the Commissioners has any incentive
to push through an unworthy case, for the most damaging event that could befall the
Commission or the reputation of the Commissioners is precisely the liberation of an
actually-guilty prisoner.
The so-called “one-way ratchet” problem is an interesting point about logical
consistency. But it is not an argument against innocence commissions; it is an argument
for some type of post-acquittal review. There is no reason, in principle, why one could
not both support innocence commissions and support some procedure to re-prosecute
those who were wrongly acquitted at their first trials. In this context, it is interesting to
note that eight years after the creation of the CCRC, the United Kingdom began to allow
some derogation of the Double Jeopardy privilege in cases of certain serious violent
crimes.255 Where new evidence suggests that a previously-acquitted defendant did, in
fact, commit a particularly heinous crime, the U.K. now allows for re-trial in some

253

§ 15A-1463(a).
To be sure, I am not suggesting that any of the Commissioners act with bias – only that the Commission
has been created in order to balance various interests, and some of those interests are better served with
skepticism toward any change in the verdict.
255
See Criminal Justice Act, 2003, c. 44, §75 (U.K.) (allowing for re-trials under certain limited
circumstances for cases of, inter alia, murder, rape, war crimes, and crimes against humanity).
254

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circumstances.256 Some observers see a clear thread connecting the creation of the CCRC
and the erosion of the Double Jeopardy privilege in the UK.257 As Prof. Lillquist
suggests, it would not be surprising if the demand for greater accuracy in the criminal
justice system would focus first on those suffering for crimes they did not commit and,
next, on those enjoying freedom despite their factual guilt.258 This just goes to show that
the value of accuracy is one that can serve (and slice against) both a Left-wing Due
Process model and a Right-wing Crime Control model. In the end, if one thinks that, on
balance, innocence commissions are justice-enhancing phenomena, then one should
support them, even if one feels that there are still other justice-enhancing phenomena that
one seeks – e.g., some form of post-acquittal review.
4. Innocence Commissions Will Lead to More Wrongful Convictions
One of the most subtle arguments against innocence commissions is that trial
juries’ knowledge of such commissions will actually result in more wrongful convictions
than would exist without the commission.259 This is because, as Prof. Lillquist writes, the
standard of proof at criminal trials – guilt beyond a reasonable doubt – is a “floating
standard.”260 Trial juries in a world without innocence commissions interpret guilt
beyond a reasonable doubt as a very high standard of proof; Prof. Lillquist asks us to
imagine it as 90% certainty.261 But in a world where an innocence commission exists as
a back-stop for the defendant, juries will begin to interpret the beyond-a-reasonable-doubt
standard more loosely – perhaps, Prof. Lillquist suggests, as 80% certainty.262
256

Id.
See Lillquist, supra note 237, at 910.
258
Id.
259
Id. at 908 – 10.
260
Id. at 908.
261
Id. at 909.
262
Id.
257

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Consequently, there will be a class of cases – those where the juries’ certainty is between
80% and 90% -- that would be acquittals in a world without innocence commissions but
that become convictions in a world with innocence commissions. Some number of those
cases will be wrongful convictions, and what’s more, those wrongful convictions are
unlikely to be overturned by the innocence commission. Why not? Because the
commission’s standard of proof to overturn a guilty verdict is sufficiently high that in
some cases where a jury found guilt to an 80%+ degree of certainty, the commission will
not recommend reversal of the conviction.263 The net result is that there will be more
wrongful convictions in a world with innocence commissions than without them.264
To what extent does the possibility of commission-style factual review make
convictions at trial more likely? Prof. Lillquist’s hunch is that juries are more likely to
convict if they know that there is a “back-stop” commission. My own hunch is that the
existence of an innocence commission is unlikely to change juror or jury psychologically
in any measurable way. An innocence commission is unlikely to figure into the minds of
jurors any more than appellate courts or the Governor’s pardon power or the remote
possibility of habeas review. Each time post-conviction review expands, there are those
who claim that the trial process will suffer as a result. Geoffrey Hazard once asked
rhetorically, “[W]hat if everything a trial judge does is in principle merely provisional,
subject to approval by higher authority, both as to substance and as to technical

263

Id. Nor, presumably, would a special court vote unanimously to vacate all of the wrongful convictions
that slip through on the now-lower beyond a reasonable doubt standard.
264
Id. This argument against innocence commissions does not, at first glance, appear to be an argument
from the Right, but its motivating concern is for the integrity of the trial of first instance. In this sense, it
sits comfortably with the constellation of interests served by finality – particularly, the concern that
additional procedures inevitably reduce the prestige, power, and accuracy of the criminal trial itself.

58

regularity?”265 Though the question was rhetorical, there is in fact very little evidence,
statistical or anecdotal, that the expansions of appellate and post-conviction review of the
past seventy years have led to any diminution in the quality of trials or of judging or of
jury fact-finding. Prof. Lillquist relies on a few empirical studies for the proposition that
the beyond-a-reasonable-doubt standard is a floating standard,266 but there is no data to
support the proposition that the availability of commission-like review will actually warp
that standard. Still, Prof. Lillquist’s hypothesis suggests that the rate of conviction and,
to the extent possible, the behavior of juries ought to be monitored in North Carolina to
help determine whether the Commission has, in fact, resulted in perceptible changes in
jury behavior. No such studies exist at present. Prof. Lillquist’s argument is a potent
reminder that criminal justice reformers ought to think many steps ahead to insure that
accuracy-enhancing procedures at the post-conviction review stage do not backfire and
increase miscarriages of justice at earlier stages of the criminal process (e.g., at trial).
But the argument that innocence commissions will so warp jury behavior as to actually
increase wrongful convictions is, at this point, completely speculative.
B. Criticism from the Left: The Value of Innocence Review
The interest of a convicted person in access to factual review is clear: Depending
on the sanction he is enduring, his very life, liberty, property, reputation, and/or social
status is at stake. Criminal conviction results in both direct criminal sanctions – the death
penalty, incarceration, fines, and/or restitution – plus a host of collateral consequences –

265

Hazard, supra note 209, at 650. Hazard suggests that, in such a world of over-bearing review, state
court trial judges will no longer act “like judges” because “they are not treated like judges.” Id.
266
See Erik Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, 36 U.C.
Davis L. Rev. 85, 118-30 (2002) (cited in Lillquist, supra note 237, at 908 n. 63).

59

from official civil disabilities to social stigma and economic dislocation. 267 It is hard to
overstate the negative effects of criminal conviction on the life chances of a person, and
as a consequence, the potential benefits of judicial “vindication” – that is, a quashing of
conviction – are also extraordinary. The individualized interest of the petitioner thus
always weighs very high in post-conviction review cases.
But apart from the petitioner’s own interests, there are vital social values at stake
in actual innocence review, most prominently the systemic commitment to accuracy. By
accuracy, I mean the basic principle that only individuals guilty of committing a criminal
act should be convicted of a crime. Here, the distinction between conventional habeas
review and the kind of factual review conducted by the commission approach is
important. The habeas regime we constructed in the second half of the twentieth century
serves the important social interest of insuring systemic compliance to constitutional due
process. But the social interest served by traditional habeas review strikes many people
as abstract and technical – it is, in the end, about procedural regularity. Innocence review,
on the other hand, is about the very substance of criminal justice: Did the petitioner
commit the crime or not? Innocence review signals a systemic commitment to the
accurate sorting of the guilty from the innocent, which is the system’s very raison d’être.
This interest – society’s interest in a criminal justice system that accurately sorts the
guilty from the not-guilty – is hard to overstate. And it is visceral: Everybody
understands that the conviction of an innocent person is a profound injustice, while many
267

If he is on death row, his life is at stake, and if he is in prison or jail, his liberty is at stake. See Sanders
v. United States, 373 U.S. 1, 8 (1963) (“Conventional notions of finality of litigation have no place where
life or liberty is at stake.” ). And even if he is no longer incarcerated, he maintains a considerable interest
in vacating the collateral consequences of conviction – namely, the “civil disabilities” imposed by
operation of law and the severe social, economic and reputational burdens of conviction. See David Wolitz,
The Stigma of Conviction: Coram Nobis, Civil Disabilities, and the Right to Clear One’s Name, 2009
B.Y.U. L. REV. 1277, 1309 - 17 (2009).

60

people find it hard to see a conviction based on a procedural violation in the same
category. In the case of habeas, citizens are asked to accept a diminution in finality for
an abstract commitment to the procedural norms of the system. In the case of innocence
review, citizens are asked to accept a diminution in finality for a commitment to the
factual accuracy of convictions.
Innocence review also serves values beyond accuracy. Every time a new process
of review becomes available, a diffusion of power results.268 Some level of diffusion is
important to check concentrations that strike us as problematic throughout the judicial
system. For instance, lay juries serve to check the power of the professional judiciary,
appellate courts check the power of trial judges, and multi-member panels check the
power of any single judge or justice. The institution that the innocence commission
checks is the jury, the primary fact-finder in our criminal trial process. No other
institution has taken upon itself the fact-finding mission of the jury, and judges are
reluctant – in doctrine and in fact – to second-guess juries on pure issues of fact.269
Commission review, which is limited to precisely the kind of fact-finding traditionally
vested in juries, thus marginally reduces and diffuses the power of trial-court juries.270
Of course, this diminution in the power of the jury is itself controversial, but it reflects a
general belief that “the involvement of more people will yield better results” and will
diffuse concentrations of power. 271 Thus, one more value promoted by innocence
commissions is the marginal diffusion and re-allocation of institutional power currently
held by trial-court juries.
268

Judith Resnick, Tiers: Part I, 57 S. CAL. L. REV. 840, 872 (1984).
See supra discussion in Part II.
270
Lay juries themselves play a power-diffusing role vis-à-vis judges. See Resnick, supra note 268, at 851
(“[I]n the case of juries, judges must yield to the voice of the ‘people.’).
271
Resnick, supra note 268, at 848.
269

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Additionally, the commission system reflects a commitment to the values of
expertise and professionalism. Again, the contrast with lay juries is instructive. Unlike
lay jurors who are expected to be amateurs in the criminal justice system, staff and
commissioners of innocence commissions are chosen precisely for their experience with
and expertise in criminal justice issues. The North Carolina statute, for instance,
specifically requires that the Commission include a judge, a prosecutor, a defense
attorney, a sheriff, and a victim right’s advocate.272 This requirement reflects a desire to
have a diversity of views on the panel, but also a desire to have criminal justice
professionals make the ultimate decision about whether to refer cases or not. The statute
also provides for a director and associated staff to “assist the Commission in developing
rules and standards for cases accepted for review, coordinate investigation of cases
accepted for review, maintain records for all case investigations,” and other tasks.273 In
short, the commission system reflects the dominant values of the administrative state
more generally: deference to subject-matter expertise, an ethic of professionalism, and
the agency’s discretion to create internal rules, standards, and procedures consistent with
the purposes of the authorizing legislation.274
Finally, there is the symbolic value of a criminal justice system that is willing to
subject its own factual conclusions to systemic review. We might call this the norm of
humility, or openness to self-correction, and it is the counter-part to Prof. Bator’s
description of “repose.” Prof. Bator correctly pointed to a general social desire for repose

272

§ 15A-1463(a).
§ 15A-1465(a).
274
See, e.g., Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189 (1986)
(describing the trend for courts to accommodate themselves to administrative discretion based on expertise).
This model is now the standard way our states and federal government administer regulatory programs and
adjudicate administrative disputes; it is still novel in the criminal law.
273

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as a reason for finality, and he described repose as a pre-condition for forward-looking
action. Because of the unique power of the government in the area of criminal law – the
power to imprison and to put citizens to death – there is a corresponding social desire for
assurance that the state has exercised its power justly. We feel the heavy weight of state
coercion in criminal law, we feel uneasy using it, we know that the criminal justice
system sometimes makes mistakes, and we want to be absolutely sure that the people we
deprive of life or liberty are, in fact, guilty. Consequently, we want to instill an ethic of
humility and self-scrutiny into the process. Commission review, which serves as a backstop to the normal workings of the criminal justice system, signals to citizens that the
state is open to the possibility that the court system reached the wrong verdict and that it
(the state) has established a comprehensive procedure for self-correction. Just as Prof.
Bator took pains to distinguish “repose” from “mere complacency,”275 I want to take
pains to distinguish openness to self-correction from what Prof. Bator called “perpetual
and unreasoned anxiety.”276 Humility or self-scrutiny is the frank admission that the
normal workings of the courts sometimes result in miscarriages of justice and that we
should be open to some degree to reviewing such claims. This is not an “unreasoned
anxiety,” but rather an honest recognition of the fact that many exonerations have taken
place in the past fifteen years, combined with a determination to mitigate further
miscarriages of justice. To use Prof. Bator’s vocabulary, our repose has been upset by
the revelation that hundreds of factually innocent people have been convicted and
imprisoned by our court system; a bout of self-reflection and a serious show of self-

275
276

See Bator, supra note 56, at 452.
See id. at 453.

63

correction is now itself instrumental to secure the repose that Prof. Bator calls a
“psychological necessity.”277
From the Left, the major deficiency of the innocence commission approach is that
it fails to create any kind of legally enforceable right to make a stand-alone innocence
claim in court. To the contrary, the commission approach buries claims of actual
innocence in the non-appealable, non-judicial process of an independent state
bureaucracy. From this perspective, innocence commissions are simply executive pardon
boards in new garb – unaccountable state institutions with absolute discretion to pursue
or ignore miscarriages of justice as they please. Whether innocence commissions are
able to actualize any of the values of additional review summarized above is, thus, a
doubtful proposition. On this view, until factual post-conviction review is available as a
judicially-enforceable right on par with Constitutional review, the Innocence Problem
will never be soluble.
The Herrera case, in its refusal to find or craft a stand-alone innocence claim in
habeas corpus, looms large in the Left-wing discourse on innocence. One commentator
memorably wrote that Herrera “ranks as one of those infamous Supreme Court opinions,
like Lochner and Plessy, that is utterly repugnant to any basic sense of fairness.”278 The
criticism of Herrera by legal academics and advocates for prisoner’s rights has been
severe, voluminous, and continual.279

277

See id. To be clear, this discussion does not assume that innocence commissions will actually eliminate
miscarriages of justice, only that their existence can help reassure the public that the system is facing up to
its revealed faults.
278
Brent E. Newton, A Case Study in System Unfairness: The Texas Death Penalty: 1973 – 1994, 1 TEX. F.
ON C.L. & C.R. 1, 34 (1993).
279
See, e.g., Janet C. Hoeffel, Innocence: The Roberts Court’s Failed Innocence Project, 85 CHI.-KENT L.
REV. 43 (2010); Brandon Garrett, Claiming Innocence, 92 Minn. L. Rev. 1629 (2008); Nicolas Berg,
Turning a Blind Eye to Innocence: The Legacy of Herrera v. Collins, 42 AM. CRIM. L. REV. 121 (2005);

64

What most Left-wing critics of Herrera want is for the U.S. Supreme Court to
find or create a federal freestanding post-conviction innocence claim as a matter of right,
just as Justice Blackmun suggested in his Herrera dissent.280 The precise nature of that
right, and its textual basis, are matters of debate among commentators on the Left.
Brandon Garret, for instance, argues that such a right can be inferred (or created) from
the Due Process Clause, the Eighth Amendment prohibition against cruel and unusual
punishment, and possibly even the Sixth Amendment right to a jury trial.281 It should be
a “freestanding innocence claim that would grant relief to those who can show that, more
likely than not, no reasonable jury would convict in light of the new evidence.”282
George C. Thomas, et al., argue on both efficiency and fairness grounds that the Supreme
Court ought to recognize an innocence claim as a Constitutional right based on the
Mathews v. Eldridge factors.283 Even those who do not pin their hopes on a federal
Constitutional right to innocence argue that innocence-based review should be a legal
right. Daniel Medwed, for instance, argues for wholesale liberalization of state-level
procedures to allow for innocence claims based on newly discovered evidence.284 And
Laura Constantine, et al., propose a model act for post-conviction review that “authorizes

Tara L. Swafford, Responding to Herrera v. Collins: Ensuring That Innocents Are Not Executed, 45 CASE
W. RES. L. REV. 603 (1995).
280
Herrera, 506 U.S. at 437 (Blackmun, J., dissenting) (“Given my conclusion that it violates
the Eighth and Fourteenth Amendments to execute a person who is actually innocent, I find no bar in
Townsend v. Sain… to consideration of an actual-innocence claim. Newly discovered evidence of
petitioner’s innocence does bear on the constitutionality of his execution.”).
281
See Garrett, supra note 279, at 1704 – 07 (2008).
282
Id. at 1636.
283
George C. Thomas et al, Is It Ever too Late for Innocence? Finality, Efficiency, and Claims of Innocence,
64 U. PITT. L. REV. 263, 302 (“[D]ue process at its heart protects innocence.”).
284
See Daniel Medwed, supra note 9, at 661.

65

state courts to consider petitions alleging actual innocence” notwithstanding “any other
provision of law limiting consideration of new evidence.”285
The common demand from the Left is a right to a freestanding innocence claim in
a court of law, and the commission approach does not accomplish that. Although the
commission approach vests a court of law with the ultimate authority to vacate a
conviction, it neither creates a right to innocence review, nor does it reach into the court
system to change existing post-conviction procedures.286 Rather, the commission
approach creates an extra-judicial body, unencumbered by court rules or by precedent, as
a supplementary avenue of post-conviction relief. And as presently organized, the
decisions of this extra-judicial body, the NCIIC, are not subject to review by any court of
law. From the Left’s court-centric and rights-centric viewpoint, a petitioner’s inability to
appeal the decisions of the Commission seriously undermines the Commission’s
pretention to provide a serious new forum for post-conviction review.287 The new
commission system, in short, does not guarantee deserving petitioners their day in court;
it just gives them a new bureaucracy to whom they can address their grievances. These
criticisms from the Left go to the core of the commission approach, for the commission
approach is precisely about taking post-conviction innocence cases away from the
courtroom and stripping out procedural barriers of all kinds.
One response to this type of criticism is to point out that the Left has simply failed
to convince the Supreme Court that a free-standing innocence claim lies latent in the
285

Lauri Constantine et al., Model Prevention and Remedy of Erroneous Convictions Act, 33 ARIZ. ST. L.J.
665, 675 (2001).
286
The Commission’s only demand on the judiciary is the rare empanelling of a three-judge bench to make
the final determination regarding exoneration.
287
Under the NCIIC model, there is no judicial appeal available from a rejection of one’s petition; it does
not matter whether the rejection comes from the Commission itself or from an adverse ruling of the threejudge panel. § 15A-1470(a).

66

Constitution or in common-law habeas corpus. While the Court has not technically held
that no such right exists,288 the prospects for a judicial “discovery” of a right to a postconviction innocence claim are not great.289 Moving to the legislature – both federal and
state – the innocence movement has had some success in the past fifteen years passing
limited DNA-related “innocence” statutes, culminating in the passage of the federal
Innocence Protection Act of 2004.290 But, as I detailed in Section Two, these statutes
have fallen short of providing a straight-forward path to factual review of convictions
because they are full of procedural and evidence-based limitations.291 In short, the
innocence movement has run up against a wall in providing more court-based innocence
review. Even those who dream of a federally recognized right to innocence review thus
have good reason to take seriously the more administrative approach that commissions
offer.
Moreover, a dedicated independent agency offers real advantages over courtbased procedures, advantages consistent with the values of additional review that those
on the Left should embrace. The next section will take up the major advantages of the
commission approach.
Section V: Advantages of the Commission Approach

The relative advantages of independent agencies has been a matter of debate at
least since the Progressive era. This is not the place to rehearse that debate, but there is
288

See, e.g., Osborne, 129 S. Ct. at 2321 (“Whether such a federal right exists is an open question. We have
struggled with it over the years, in some cases assuming, arguendo, that it exists while also noting the
difficult questions such a right would pose and the high standard any claimant would have to meet.”).
289
See, e.g., Medwed, supra note 279, at 1699 (noting that “the Court may continue to dodge the issue for
many decades to come”).
290
See supra notes 70-71 and accompanying text.
291
See supra notes 72-78 and accompanying text.

67

broad consensus that “agencies offer an appealing alternative to courts” because an
agency can “secure for itself… whatever knowledge, analysis, or analytical capacity it
thinks appropriate. An ‘expert’ agency, unlike a ‘generalist’ court, is not dependent for
what it knows about the world on the parties to particular disputes.”292 Moreover, “an
agency has a sustained, not intermittent relationship with the parties it regulates and the
problems it puts in its charge.”293 In the context of post-conviction factual review, the
advantages of a dedicated agency are considerable. Not only can a commission sweep
away procedural barriers to substantive factual review; the entire agency is geared to do –
and do well – precisely the kind of substantive factual review that many on the Left have
accused the courts of eschewing. In contrast to an expert agency, the court system
appears poorly equipped to conduct the searching factual review of jury verdicts that
those on the Left seek. Appellate courts, for instance, have virtually no fact-finding
capacities of any sort, and even trial courts, sitting in collateral review, cannot match the
initiative, expertise, and investigatory powers that a dedicated commission has. The
NCIIC can, for instance, conduct its own investigations, request municipal police forces
to conduct investigations on the Commission’s behalf, subpoena relevant witnesses, and
offer immunity in exchange for cooperation.294 All of these powers go far beyond the
means that courts typically have at their disposal and should hearten all those committed
to substantive review of jury verdicts.

292

JERRY L. MASHAW ET AL., ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM, CASES AND
MATERIAL 29 (4th ed. 1998).
293
Id.
294
§ 15A-1466.

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A. Dedicated Procedure for Fact-Based Claims
The fundamental merit of the commission approach is that it provides convicted
persons with a dedicated “address” for post-conviction innocence claims with a minimum
of procedural roadblocks. In Section II, I discussed the stifling procedural limits placed
on petitioners who try to bring innocence claims to court through pre-existing postconviction procedures. A person filing a claim with the NCIIC need not worry about a
host of procedural barriers that he would face in front of a habeas court or other postconviction forum. First, there is no “custody” requirement – anybody with a felony
conviction is eligible to apply.295 Second, there is no need to claim a constitutional, legal,
or procedural error at trial – to the contrary, the Commission has no mandate to address
such claims.296 Third, there is no statute of limitations to worry about.297 Fourth, one
may file a claim with the NCIIC even if one has previously petitioned a court for habeas
relief; indeed, one may bring a claim to the NCIIC before, after, or at the same time as
one brings appeals or other post-conviction motions in court.298 The only requirement is
that the new evidence one brings to the NCIIC not have been presented at trial or another
post-conviction procedure.299 Fifth, there is no categorical bar to successive application
to the NCIIC; if the petitioner brings forth new evidence in a subsequent petition, the
Commission has the discretion to look at the case again.300 Sixth, DNA evidence is not

295

Habeas corpus is available only to those “in custody.” 28 U.S.C. §§ 2254(a), 2255(a).
A claim for habeas relief must be a claim that one’s conviction or sentence violates “the Constitution or
the laws” of the United States. 28 U.S.C. § 2254(a), 2255(a).
297
Since AEDPA, federal habeas petitioners face a one-year statute of limitations. 28 U.S.C. § 2255(f).
298
Federal habeas for state prisoners contains a strict exhaustion of state remedies requirement. 28 U.S.C.
§ 2254(b)(1).
299
N.C. Gen. Stat. § 15A-1460(1).
300
Federal habeas has strict procedures to limit the filing of subsequent petitions. 28 U.S.C. §§ 2244,
2255(h).
296

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required for relief; the Commission will look at any “credible, verifiable” evidence.301
Seventh, relief is available to those who pled guilty at trial, although unanimity among
the Commissioners is required in such cases rather than the usual five-person majority.302
Eighth, relief is available for any felony conviction, not only for certain high-profile
crimes.303 And, finally, the Commission itself has fact-finding and investigatory
authority far beyond that of any private petitioner, thus allowing for the development of a
factual record greater than what would be possible by an individual petitioner in a
traditional post-conviction procedure.
Critics on the Left worry that, in order to access this new avenue of relief,
petitioners must give up too many of the procedural rights they take for granted in courts
– including, among others, the right against self-incrimination, attorney-client privilege,
and spousal privilege.304 No other petitioners for post-conviction review are required to
relinquish these rights – in particular, the Constitutional right against self-incrimination.
From a doctrinaire Due Process model framework, petitioners claiming innocence should
not be required to trade in their Constitutional and common-law rights for the “privilege”
of proving their innocence.
But in the context of an expert agency devoted to ferreting out wrongful
convictions, the requirement that petitioners cooperate with Commission investigations
and give up some procedural rights is reasonable. By definition, a petitioner to the
Commission has already been convicted of the crime that is the subject of inquiry, and
301

Most state statutes passed in the past fifteen years to allow for some factual review are restricted to
DNA evidence. See supra note 72 and accompanying text.
302
Many of the new state innocence statutes explicitly deny relief to those who pled guilty. See supra note
76 - 77 and accompanying text.
303
Many of the new state innocence statutes limit relief only to those who committed specific serious
crimes. See supra note 78 and accompanying text.
304
Chris Mumma, Guidelines for Counsel Appointed by Indigent Defense Services (Aug. 14, 2007)
(pamphlet on file with author).

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the petitioner’s waiver of his right against self-incrimination “does not apply to matters
unrelated to a convicted person’s claim of innocence.”305 Thus, the primary interest
served by the right against self-incrimination – petitioner’s interest in avoiding
prosecution or conviction – is not operative in the post-conviction context. And because
the waiver does not apply to unrelated matters, the petitioner need not expose himself to
liability for matters unrelated to the crime for which he seeks review. Mandatory
petitioner cooperation with the Commission is similarly defensible in light of the
petitioner’s role in triggering Commission review in the first place.306
In sum, the innocence commission cuts through many, if not all, of the procedural
barriers that keep courts from looking at actual innocence claims on the merits. Because
such procedural barriers have kept meritorious claims of innocence out of court, the
Commission approach represents a major improvement in the availability of factual
review.
B. Independent Investigatory Power
The NCIIC has the virtues of an independent commission with broad
investigatory powers. The Commission is independent in at least two respects – (1) as an
“independent commission” existing between branches of government and (2) as a neutral
entity unaffiliated with either the State prosecutor or the defendant. It is not a judicial
body, though the Administrative Office of the Courts provides administrative support to
the Commission.307 It is not part of the executive branch, though it is a standing
commission. And it is not part of the legislative branch, though the legislature created
and funds it. Its activities are not subject to direct review by the Governor, the Chief
305

§ 15A-1467(b).
§ 15A-1467(b), (g).
307
§ 15A-1462(b).
306

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Justice, or the General Assembly. Consequently, it is removed from both the political
considerations that plague the executive clemency process and the hierarchical
relationships that bind district and appellate courts. At the same time, the Commission is
independent of both the State prosecutors and defense bar, nor is it an adversarial forum.
Commission staff, not advocates of the State or the applicant, direct the investigations at
the Commission and develop the factual record, and the Commission has the power to
demand cooperation out of both the State and the petitioner.308 Indeed, the petitioner
must waive all of his rights and privileges with respect to the investigation of the
underlying crime before the Commission will launch a formal inquiry.309
Moreover, the investigatory powers of the Commission are robust. It has the
power to subpoena documents and witnesses, it can compel testimony in exchange for
limited immunity, and it can use any means of discovery provided for in the state civil or
criminal rules of procedure.310 In essence, it has the combined investigatory powers of
the police, a grand jury, a district attorney, defense counsel, and a court of law. The
existence of investigatory power does not, of course, mean that all investigations will be
perfectly thorough or that they will all reach the truth of the matter. But it does mean that
the Commission has the tools to function as a fact-finder with as few procedural barriers
as possible. In its power and neutrality, the Commission functions more like a juge
d’instruction in the civil law system than a judge or jury in the traditional common-law
scheme.311 The Commission’s independent investigatory authority coheres with the
308

§ 15A-1467(b), (g).
§ 15A-1467(b).
310
§ 15A-1467(a)(1).
311
The office of juge d’instruction is often translated as “investigating magistrate.” A juge d’instruction is
a judicial-branch figure responsible for directing investigation at trials in the French criminal justice
system; the position is noteworthy for its independence from both the prosecutors and the defendant. See
A.E. Anton, L'Instruction Criminelle, 9 AM. J. COMP. L. 441 (1960).
309

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common-sense intuition that a claim of factual innocence should be reviewed – at least
initially – by an entity that has robust fact-finding capabilities and the potential to build
up investigatory expertise.
C. Ancillary Benefits of the Commission
Because of its independence, its robust investigatory powers, and its authority to
refer cases to the judiciary, the Commission has the potential to ameliorate the criminal
justice system beyond the particular cases that come before it. First, its mere existence
serves to remind law enforcement authorities that “winning” in front of a jury is not their
goal; rather, bringing to justice actual criminal perpetrators is the goal. It is a truism that
punishing an innocent person is a double-injustice, but police departments and
prosecutors understandably aim to secure convictions. To the extent that the existence of
the Commission cuts down on spurious but easily winnable cases, that is a positive result.
Second, by bringing to light miscarriages of justice, the Commission may
highlight specific areas in which the justice system can improve. The causes of any
particular wrongful conviction are heterogeneous and often over-determined, but as many
other studies have noted, many wrongful convictions can be traced back to a finite
number of places in the law enforcement and trial process – e.g., eye-witness
identification, indigent defense, or forensic science.312 After a number of years in
operation, simply by doing its routine investigations. it is likely that the Commission will
have helped identify where problems lie in the current system. Of course, generalized
research into the problem of wrongful conviction is not the primary focus of the NCIIC.
But it will inevitably produce a substantial and detailed record pertaining to wrongful
312

The Innocence Project, The Causes of Wrongful Conviction, available at
http://www.innocenceproject.org/understand/ (last visited on March 6, 2010).

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convictions through (a) its findings of fact and supporting documentation in cases that it
refers to the three-judge panel313 and (b) its required annual reports to the legislature.314
The NCIIC’s annual report “may contain recommendations of any needed legislative
changes related to the activities of the Commission” and “recommendations concerning
the district attorneys or the State Bureau of Investigation.”315 The Commission may use
its annual reports to offer broad recommendations to the legislature and to state law
enforcement agencies regarding almost all aspects of the criminal justice system.316 At a
minimum, the Commission could use its reports to aggregate and analyze information
that would be of great help to reformers outside of the Commission. Through these
reports, the Commission cannot help but serve as an agent of transparency for the entire
state criminal justice system.
Finally, the Commission provides an important legitimating function to the
overall criminal justice system. Every system of criminal justice – every human
institution – is bound to make mistakes. The Commission is not going to catch every
mistake, and it too may make mistakes. But the question is whether the system is diligent,
honest and self-confident enough to provide sufficient means to correct mistakes. By
providing such means, the Commission signals to the citizens of the state that the
criminal justice system is not going to ignore, or sweep under the carpet, blatant
313

§ 15A-1468(c), (e).
The annual report is addressed to the Joint Legislative Corrections, Crime Control, and Juvenile Justice
Oversight Committee and the State Judicial Council. See NCIIC, 2009 Annual Report, available at
http://www.innocencecommission-nc.gov/Report2009.htm (last visited March 6, 2010) (2009 Annual
Report). The State Judicial Council is an advisory and oversight body for the Judicial Branch of
Government, chaired by the Chief Justice of the Supreme Court and consisting of representatives from
every component of the court system, the bar, and the public. Its various specific and general duties
encompass studying and monitoring the operations of the court system, and identifying areas for
improvement. See The N.C. Court System, The State Judicial Council, available at
http://www.nccourts.org/Courts/CRS/Councils/JudicialCouncil/Default.asp (last visited March 6, 2010).
315
§ 15A-1475.
316
Most likely due to staffing limitations and political sensitivity, the first two annual reports were fairly
modest and did not offer any suggestions for systemic reform. See, supra note 314, 2009 Annual Report.
314

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miscarriages of justice. Rather, the state seeks to uncover such miscarriages and right the
wrong. After the cases of Ronald Cotton and Daryl Hunt, among others, revealed the
scope of the Innocence Problem in North Carolina, the state’s demonstrated commitment
to freeing the innocent is particularly timely and may go a long way to boosting the
overall legitimacy of the criminal justice system.317

Section VI: Proposed Reforms
Up to this point, I have defended the Commission approach against systemic
criticism from both the Left and Right, and I have offered an account stressing its
advantages. In this section, I want to discuss a few smaller-scale critiques of the NCIIC
and suggest relevant reforms.
Every agency has to balance the goals of efficiently carrying out its tasks with
providing individualized procedural fairness.318 The liberal critique of the NCIIC
essentially holds that the Commission, as presently constituted, gives short shrift to
individualized procedural fairness. In this section, I will consider that critique
specifically as it relates to four topics: (a) the internal procedures of the Commission
leading to denials of petitions, (b) the possibility of judicial review of such denials, (c)
the proper standard of review for exoneration, and (d) the Commission’s “new evidence”
requirement.

317

Former Chief Justice Beverly Lake told a local newspaper that the exoneration of Greg Taylor “‘restores
the public’s confidence in our system.’” See Sheehan, supra note 18 (quoting former Chief Justice Lake,
“If we find someone has been wrongly convicted, we can’t give them that time back, but we can make it
right. That’s a victory.”).
318
See MASHAW ET AL., supra note 293, at 38-39.

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A. Who Guards the Guardians? Improving the Commission’s Accountability
Like all independent agencies, the NCIIC needs a certain amount of discretion to
complete its task efficiently, but too much discretion can result in a lack of accountability
and a lack of procedural fairness to those affected by an agency’s actions. As currently
constituted, the NCIIC vests its staff with too much discretion and too little transparency.
The executive director and staff-members of the Commission have extraordinary
discretion to dismiss claims at a number of stages. Before a formal Commission hearing
ever takes place, a claim to the NCIIC must make its way through five distinct stages:
claim initiation, claim review, further review, investigation, and formal inquiry.319 The
executive director or a designated staff-member is empowered to reject the petition at any
of those stages if he or she determines that the petition does not meet the eight criteria for
Commission action.320 In practice, this means that petitions are routinely rejected by a
single staff-member or by the executive director without any hearing in front of the
Commission or the participation of a single Commissioner.321
In addition, much of the Commission’s work is closed to public scrutiny. None of
the records or proceedings of the Commission are subject to the public record and public

319

NCIIC, Case Progression Flowchart, available at http://www.innocencecommissionnc.gov/Flowchart.htm (last visited March 5, 2010).
320
The eight criteria that must be met for formal inquiry are as follows: (1) Conviction must have been in
North Carolina state court. § 15A-1460(1); (2) Conviction must be for a felony. § 15A-1460(1); (3)
Applicant must be a living person. § 15A-1460(1); (4) Applicant must be claiming complete factual
innocence for any criminal responsibility for the crime. § 15A-1460(1); (5) Credible evidence of innocence
must exist. § 15A-1460(1); (6)Verifiable evidence of innocence must exist. § 15A-1460(1); (7) Claim
must not have been previously heard at trial or in a post-conviction hearing. § 15A-1460(1); (8) Applicant
must sign waiver of procedural rights.. § 15A-1467.
321
NCIIC, Rules and Procedures, art. 4(F), available at http://www.innocencecommissionnc.gov/rulesandprocedures.htm (last visited March 8, 2010) (“The Executive Director or his/her designee
will have authority to make the decision whether to reject a case, call for further review, or move a case
into formal inquiry.”). None of this is meant to suggest that the executive director or staff-members are
incapable of carrying out their responsibilities; my point here is only to stress the large amount of discretion
(power) they hold.

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meeting laws.322 Indeed, all such records and proceedings are confidential, with the sole
exception that if the Commission votes to refer the case to a special three-judge panel,
then all supporting records, files, and transcripts of hearings will become public.323
Hearings before the Commission are presumptively closed to the public.324 In sum, the
Commission has no duty to give reasons for rejecting or denying a claim, has no duty to
release its internal deliberations on a claim, and has no duty to hold open hearings. The
combination of tremendous individual discretion and lack of transparency violates the
very norms that underlie additional review.
Moreover, the NCIIC process currently does not allow for any judicial appeal of
Commission decisions.325 In practice, this means that a denial or rejection of a petition at
any stage of Commission review is final and unalterable. The unreviewability of
Commission decisions is somewhat mitigated by the fact that petitioners are free to repetition the Commission, but without any appeal mechanism, the Commission faces no
accountability from any other source.326 This lack of accountability is particularly
problematic where the Commission issues a rejection before the stage of formal
Commission review – which is to say, the vast majority of rejections – because rejections
before the Commission vote stage do not come with any explanation for the reasons for
rejection.

322

§ 15A-1468(e).
Id.
324
§ 15A-1468(a).
325
§ 15A-1470(a) (“Unless otherwise authorized by this Article, the decisions of the Commission and of
the three-judge panel are final and are not subject to further review by appeal, certification, writ, motion, or
otherwise.”) This contrasts with the British CCRC approach in which adverse decisions are appealable to a
court of law on the same basis as other administrative actions – i.e., with a “perverse or absurd” standard of
review. See supra note 118 and accompanying text.
326
The Commission exists, of course, to provide a check on the jury; the argument here is that the
Commission itself needs a “check” in the form of judicial review.
323

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This astounding amount of discretion can be mitigated in at least two ways:
externally through judicial review and internally through bureaucratic review. In federal
administrative law, a party receiving an adverse agency decision usually has the right to
judicial review, but only of a limited and deferential nature.327 If a denial from the
Commission resulted in a de novo appellate review in a court of law, then the
Commission would function as little more than a prelude to a court-based procedure.328
The idea behind judicial review of agency action is to subject the agency to review strong
enough to insure procedural regularity and legality, but deferential enough to insure that
the court is not substituting its own substantive judgment for that of the expert agency.
Maintaining this balance is inevitably a difficult task, but even very deferential judicial
review serves to remind agency actors that they are accountable. In the UK, for instance,
decisions of the CCRC are reviewable under a highly deferential “perverse or absurd”
standard.329 This British standard is analogous to the “arbitrary and capricious” standard
that governs much judicial review of agency action under the Administrative Procedure
Act.330 Allowing for similarly deferential judicial review of NCIIC denials would boost
Commission legitimacy and help insure procedural regularity within the Commission at
an acceptable level of cost in additional judicial work.
As for more responsible internal procedures, the example of the British CCRC is
again instructive. Under CCRC procedures, only a Commissioner can issue a rejection –

327

The usual standard of review of agency action holds that agency decisions will stand unless they are
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Administrative
Procedure Act, 5 U.S.C. § 702(2)(A) (2006).
328
See MASHAW ET AL., supra note 293, at 747 (“If courts were to police agencies by assessing every
administrative decision from scratch (de novo), any efficiency or other gains Congress seeks by vesting
authority in administrators would be all but lost.”).
329
See supra note 118 and accompanying text.
330
5 U.S.C. § 702(2)(A).

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not a staff-member.331 If a Commissioner determines that a case does not meet the “real
possibility that the conviction . . . would not be upheld” standard, then a provisional
rejection notice, along with a Statement of Reasons, is sent to the applicant.332 The
applicant, in turn, has twenty business days to respond to the provisional rejection with
any supplemental information or arguments. If the applicant responds, then the
Commissioner has an obligation to review the response and once again determine
whether referral is appropriate. If not, then a final rejection and Statement of Reasons is
issued to the applicant.333 This procedure forces Commission staff-members to present
their reasons for rejection to at least one accountable Commissioner, and it forces
Commissioners to issue reasons for rejection to the petitioner. In the provisional nature
of the initial rejection, this procedure also mimics agency notice-and-comment
rulemaking, allowing the most affected party one more chance to make his or her case.
The NCIIC would do well to adopt the CCRC approach to denials of petitions. Doing so
would increase the transparency and accountability of Commission decisions, it would
grant petitioners more “voice” in the process, and it would incentivize greater reasoned
decision-making inside the Commission. It is true that the institution of such procedures
will also increase costs and “red tape.” But the present balance of values is skewed too
far on the side of agency discretion, and a modest increase in procedural fairness would
tilt the balance back in the right direction.

331

CCRC, How We Review Your Case, available at http://www.ccrc.gov.uk/canwe/canwe_33.htm (last
visited on March 6, 2010).
332
Id.
333
Id.

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B. The New Evidence Requirement and the Standard of Review
Some may argue that the commission approach, as it manifests itself in the NCIIC,
sets too high a burden on the petitioner to prove his or her innocence. The burden is twofold: First, a petitioner must present evidence that is new, credible, and verifiable in
order for his or her claim to survive the Commission process.334 Second, the standard of
review in front of the three-judge panel is “whether the convicted person has proved by
clear and convincing evidence that [he] is innocent of the charges.”335
Prof. Michael Risinger has set out the most compelling case for a lower standard
of review in appellate or post-conviction proceedings. Specifically, Prof. Risinger argues
for an “unsafe verdict” standard, modeled on the British standard of the same name, for
the review of cases that turn on factual innocence.336 The basic idea is that the postconviction review of binary factual determinations ought to be particularly searching
because juries are not very well-suited to making such determinations.337 Under the
unsafe verdict standard, a reviewing court will vacate a conviction if the court “entertains
a ‘lurking doubt’ that the defendant was rightly convicted, or where the court is not ‘sure’
that the defendant was ‘rightly convicted.’”338 The idea of this standard is to prod

334

§ 15A-1460(1). When the Commission votes to refer a case to the three-judge panel, the standard is
whether “there is sufficient evidence of factual innocence to merit judicial review.” § 15A-1469(a).
335
§ 15A-1469(h).
336
D. Michael Risinger, Unsafe Verdicts: The Need for Reformed Standard for the Trial and Review of
Factual Innocence Claims, 41 HOUS. L. REV. 1281 (2004). While Risinger’s proposal of the unsafe verdict
standard was not made specifically in the context of innocence commissions, it is emblematic of a Leftwing approach to post-conviction factual review.
337
Id. at 1307 (arguing that juries are not well-suited to decisionmaking “when the actual triable issue in a
criminal case is the simple binary issue of perpetration, or a similar pure-fact binary issue”). According to
Risinger, juries are well-suited to the task of tackling “normatively charged polyvalent issues,” but not to
making binary factual determinations. Id. at 1311.
338
Griffin, supra note 114, 115 (2009). Others have described the unsafe verdict standard as one
compelling relief if the court determines that it is “no longer reasonably likely that the same verdict would
have resulted.” Id. at 116.

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appellate courts – or courts sitting in collateral review – to meaningfully engage with the
evidence and factual findings undergirding jury verdicts.
The unsafe verdict standard differs from the standards at use is the NCIIC process
in two ways. First, under an unsafe verdict standard, the petitioner need not present new
evidence in order to obtain a hearing or relief. Whether new evidence is proffered or not,
the reviewing court needs to be convinced that the underlying conviction was rightly and
securely entered. Second, while the unsafe verdict, like all standards, may not pick out a
precise quantum of burden of proof, it undoubtedly falls well below the “clear and
convincing” standard of proof required of petitioners in the NCIIC process. On this
account, the burden should not be entirely on the petitioner to show that he or she is
clearly and convincingly innocent; rather, once the Commission has determined that there
is real reason to review the underlying verdict, then the reviewing court must satisfy itself
that the factual basis for conviction is “safe” before affirming conviction.
These critiques of the NCIIC approach have real bite,339 but pragmatic
considerations caution against adopting them any time soon. The Innocence Commission
is a novel institution, operating within a limited budget, and taking on a relatively
unpopular task. For it to succeed, it must be extremely cautious in its early phases. The
new evidence requirement is a mechanism allowing the Commission to limit its “docket,”
and thus focus its limited resources on the most promising and most sympathetic sub-set
of innocence claims. Moreover, this sub-set of cases responds directly to the sensational
stores of post-conviction vindication that sparked the creation of the Commission in the
339

If we take seriously the proposition that juries can make mistakes on the facts in front of them, then
there is no reason in principle to demand new evidence from a petitioner claiming factual innocence.
Perhaps the burden of proof on such a petitioner ought to be higher than on a petitioner who brings new and
credible evidence, something analogous to the “beyond a reasonable doubt standard” in reverse. See, e.g.,
Risinger, supra note 336, at 1310 – 13.

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first place: namely, cases in which new evidence proved the convicted person’s
innocence. Perhaps a more secure Commission, one that has become an uncontroversial
part of the criminal justice landscape in North Carolina, may re-consider the “new
evidence” requirement at some point. But in the here and now, the most prudent course
is to continue to require new evidence before acting on innocence claims.
The “clear and convincing” standard is also a pragmatic way to limit relief to
those whom the panel deems positively innocent. An unsafe verdict standard raises the
possibility that the court could vacate a conviction not because it finds the petitioner
innocent, but rather because it is not convinced of the petitioner’s guilt. The gray area
between actual innocence and doubtful guilt is a fascinating place for theoretical inquiry,
but it is not the area that the commission system was created to explore. The commission
system’s mandate is to vindicate only those who can show actual innocence. For that
mandate, a “clear and convincing” proof of innocence is the right standard. Moreover,
the high standard serves an important signaling function to the wider public; it assures
state citizens that only the most worthy petitioners, those with clear and positive evidence
of innocence, will be exonerated. For these pragmatic reasons, the new evidence
requirement and the high standard of proof strike me as prudent ways for the Commission
to achieve greater legitimacy within the state criminal justice system and to build a record
as a cautious and prudent institution.

Section VII: Conclusion

Innocence commissions will not make our country’s Innocence Problem go away.
Even if every state and the federal government adopted the Commission model, innocent
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people will continue to be convicted and punished for crimes they did not commit, and
innocence commissions will fail to right many miscarriages of justice. The problems of
wrongful conviction stem from a long list of issues in law-enforcement and trial
procedures – from police line-up practices to eyewitness evidence rules to our system of
indigent defense, to name only a few. And the problems besetting out existing courtbased regime of post-conviction review will remain largely untouched by the
establishment of innocence commissions. The commission approach represents not a
“fix” for habeas corpus and other post-conviction procedures, but rather an attempt to
escape the whole tangled mess.
The commission approach aims to reform only one small piece of the puzzle –
namely, how to address freestanding post-conviction claims of actual innocence. And
with respect to that narrow problem, the commission approach offers a significant
improvement over the status quo. By providing a dedicated address for petitioners to
make claims of factual innocence and a staff with the power and expertise to assess those
claims, the commission approach cuts through the systemic difficulties of reviewing final
convictions.
Some of the reluctance to create new post-conviction procedures stems from a
legitimate fear that new procedures will exact too much of a price in real dollars and in
the constellation of values we call finality. The creation of innocence commissions
undoubtedly comes at a price in both resources and in systemic finality. But what we
have learned over the past fifteen years is that the existing system over-values finality at
the price of too many miscarriages of justice. The commission approach represents a
modest but necessary correction to that imbalance.

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As a new institution and an independent agency, the NCIIC must itself strike a
delicate balance between efficacy and fairness. I have suggested that the Commission
ought to bolster procedural fairness in two ways: (1) by requiring a Commissioner –
rather than a staff-member – to approve all denials and (2) by providing for some type of
limited and deferential judicial review of denials. I further suggested that, in time, the
Commission ought to consider dropping the new evidence requirement, for some jury
decisions are simply wrong on the evidence before them.
Overall, in just over three years of operation, the NCIIC is proving itself to be an
extremely promising new mechanism for providing post-conviction factual review. The
exoneration of Greg Taylor in February 2010 was a giant step in the maturation of the
Commission. One hopes that this experiment will continue to attract serious scholarly
attention and criticism in the months and years ahead and that it will, in its own modest
way, contribute to an improvement in justice in America.

84