Works in Progress Group # 6 Criminal Justice: Rights & Ethics

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Session Type: Works-in-Progress

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Ethical Considerations: How to Work With Conviction Integrity Units

A Conviction Integrity Unit (CIU) is a division of a prosecutorial office designed to prevent, identify, and remedy wrongful convictions. Recent analysis completed by the National Registry of Exonerations found that CIUs played a role in 58 out of 151 total exonerations in 2018, and of those 58 exonerations, CIUs reportedly collaborated alongside innocence organizations in 42 exonerations. While CIUs are rare, innocence organizations that operate in the same jurisdiction as CIUs recognize that these units are participating in exonerations at a growing rate. However, an innocence organization’s decision to collaborate with a CIU on behalf of a client is the first of many ethical queries that an organization will face while working with a CIU.

Professor Richardson's article argues that innocence organizations should view CIUs as one of many strategic efforts to seek relief on behalf of their clients and suggests best practices for innocence organizations to consider should they decide to work alongside CIUs. Part I analyzes the historical significance of CIUs and how they have emerged in the present day as part of a larger reform-minded narrative about criminal justice. Part II discusses the ethical obligations faced by CIUs and prosecutors more generally. Part III addresses the ethical obligations faced by innocence organizations, especially when collaborating with CIUs. Part IV explores how CIUs and innocence organizations can engage in best practices and secure exonerations while navigating tricky, and at times conflicting, ethical obligations.


The Myth of Autonomy Rights

Supreme Court rhetoric, scholarly discussion, legal doctrine, and ethical rules have perpetuated a myth that individual rights protect the autonomy of defendants within the criminal legal system. To expose this myth, Professor Miller examines six rights that the Court has enshrined as essential decision points for criminal defendants due to their purported expressive and consequential functions: (1) the right to self-representation; (2) the right to plead guilty; (3) the right to waive a jury; (4) the right to testify; (5) the right to waive appeals; and (6) the right to maintain innocence at a capital trial. She concludes that each of these rights fails to protect defendant autonomy.

Professor Miller argues that genuine displays of autonomy under the criminal legal system take the form of resistance to the law, legal advocates, and the legal system. Thus, the autonomy of criminal defendants occurs not because of law, but despite it. As such, scholarly discussions of the personal autonomy of criminal defendants should focus not on rights and rules, but on acts of resistance. The current autonomy rights discourse is harmful because it obscures the system’s defects by framing discussions around individual rights instead of structural limitations. This lends itself to solutions involving procedural tinkering to better actualize individual rights instead of radical structural reform. By obscuring structural defects, and stressing the system’s protective qualities, the autonomy rights discourse presents the system not only as legitimate, but as functional, and potentially even successful. A new scholarly frame is warranted: autonomy as resistance to law.