Barred: Why the Innocent Can't Get Out of Prison

by Daniel S. Medwed

Overview

A groundbreaking exposé of how our legal system makes it nearly impossible to overturn wrongful convictions 

Thousands of innocent people are behind bars in the United States. But proving their innocence and winning their release is nearly impossible. 
 
In Barred, legal scholar Daniel S. Medwed argues that our justice system’s stringent procedural rules are largely to blame for the ongoing punishment of the innocent. Those rules guarantee criminal defendants just one opportunity to appeal their convictions directly to a higher court. Afterward, the wrongfully convicted can pursue only a few narrow remedies. Even when there is strong evidence of a miscarriage of justice, rigid guidelines, bias, and deference toward lower courts all too often prevent exoneration. 
 
Offering clear explanations of legal procedures alongside heart-wrenching stories of their devastating impact, Barred exposes how the system is stacked against the innocent and makes a powerful call for change.  

Product Details

ISBN-13:	9781541675919
Publisher:	Basic Books
Publication date:	09/20/2022
Pages:	336
Sales rank:	523,526
Product dimensions:	6.00(w) x 9.30(h) x 1.30(d)

About the Author

Daniel S. Medwed is university distinguished professor of law and criminal justice at Northeastern University School of Law. A renowned innocence advocate, he is the author of  Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent. He lives in Cambridge, Massachusetts. 

Table of Contents

Opening Statement 1

Part I On Appeal

1 Some Bargain: How Plea Deals Evade Scrutiny 15

2 Preserved for Review: The Narrow Mandate of Appellate Courts 35

3 In Deference: How Trial Judges, Defense Attorneys, and Jurors Get the Benefit of the Doubt on Appeal 53

4 Foul Play: The Harms of Harmless Error Analysis 83

Part II Postconviction Matters

5 The Not-So-Great Writ: Habeas Corpus and the Illusion of Robust Collateral Review 105

6 The Ancient Writ of Coram Nobis: An Old Tool to Tackle New Evidence 131

7 The Silver Bullet of Science: Flaws with State Postconviction DNA-Testing Laws 151

8 The Supremes: Stop in the Name of Innocence 165

Part III Executive Function

9 The Innocent Prisoner's Dilemma: How Parole Procedures Fail the Wrongfully Convicted 183

10 Not Just Mercy: The Untapped Potential of Clemency 197

Part IV A Path Forward

11 Prosecutors with Convictions: The Case for Internal Review Units 215

12 Commissioned for Justice: A New Model for Handling Innocence Claims 239

Closing Argument 255

Acknowledgments 265

Notes 269

Index 311

Editorial Reviews

06/27/2022

Northeastern University law professor Medwed (Prosecution Complex) examines in this meticulous account the factors that make false convictions so difficult to overturn. Documenting wrongful convictions resulting from police misconduct, shoddy legal representation, and dubious eyewitness testimony, he notes that plea bargaining resolves 95% of criminal cases in the U.S., and describes how prosecutors—who aren’t obligated to disclose much of their evidence before trial—use “information asymmetry” to convince defendants to plead guilty. Elsewhere, he details the reasons why it is hard to prove “racial bias in the jury box”; the hurdles defense attorneys face in preserving trial issues for appellate review; and the narrow restrictions placed on convicted defendants’ use of the writ of error coram nobis, which “cite the existence of facts unknown at the time of the trial judgment that would affect the soundness of the conviction.” Throughout, Medwed draws on harrowing case studies—including a 14-year-old persuaded by his “woeful” attorney into pleading guilty to murder, who spent eight years in prison even after another man confessed to the crime—to make clear how high the odds are stacked against innocent people once they’re caught in the criminal justice system. The result is a lucid and persuasive call for change. (Sept.)

Publishers Weekly

Excellent…A model of clarity and persuasiveness. In 12 short chapters, [Medwed] describes how procedural barriers have been implemented by the courts in ways that severely hinder the proof of innocence at every stage of the judicial process.”—The Nation

"Remarkably clear and readable."—The Crime Report

“A lucid and persuasive call for change.”—Publishers Weekly

“Informative and poignant…[An] important addition to the literature on America’s addiction to incarceration.”—Kirkus

“Eye-opening…Readers interested in criminal justice will find an elucidating look at the challenges and possibilities for the wrongfully convicted.”—Booklist

“In our screwed-up legal system, it’s fairly easy to convict an innocent person and send them to prison. Tragically, and as Daniel S. Medwed explains so clearly in Barred, it is almost impossible to get them out. Punishing the innocent is not just a problem in other places. We do it every day in America.”
 —John Grisham

“By blending tales of real-life wrongful convictions with straightforward explanations of legal procedures, Medwed’s Barred demystifies the mysterious path for the innocent after trial. His clear and engaging writing style makes the topic accessible to anyone interested in the hazards of our criminal justice system. A must-read!”—Sister Helen Prejean, author of Dead Man Walking

“Barred is a stunning account of the myriad procedural roadblocks that keep innocent people trapped in our nation’s prisons. With harrowing stories from his public-defense practice, Medwed reveals how prosecutors, judges, and other officials revere finality and efficiency over fairness and truth. By exposing this rampant disregard for defendants’ culpability, Barred powerfully calls into question the justice of the entire criminal punishment system and proposes urgent ways to mitigate its damage.”—Dorothy Roberts, author of Torn Apart

“For every innocent prisoner we’ve freed over the past three decades, countless others remain behind bars. Barred brilliantly illustrates the absurdity of this situation: how it is far too easy to convict the innocent, and far too hard to correct those mistakes.”
 —Barry Scheck, cofounder of the Innocence Project

“For every newspaper photo of an innocent person exiting the prison gates, clutching the hand of their triumphant lawyer, there are uncountable others whom we will never allow to see that day—who will die in prison because our laws make it so difficult to prove their innocence in court. In Barred, Daniel S. Medwed gives us an urgent tour of the darkest corners of our judicial system, where persuasive evidence becomes trapped in a labyrinth of legal procedure. Underlying Medwed’s sharp legal analysis is a political question: Is this the country we want to be?”
 —Maurice Chammah, author of Let the Lord Sort Them

“With this insightful book, Medwed exposes the byzantine tangle of legal rules and procedures that keep innocent people in prison. Clear, accessible, and often astounding, Barred explains why strong evidence of innocence doesn’t matter once a trial is over, and how our criminal system routinely sacrifices accuracy for finality. A leading scholar and expert on innocence, Medwed is also a wonderful educator. This book teaches us all how the wrongfully convicted are trapped by the criminal bureaucracy, by modern appellate rules, and by ancient Latin writs that have been around for hundreds of years.”—Alexandra Natapoff, author of Punishment Without Crime

“Most people are by now aware that the criminal justice system, being made up of human beings, makes mistakes. Much has been written about one such mistake: that a scandalously large number of innocent people get convicted and sent to prison. What many people remain largely unaware of is that it is far easier for the government to convict an innocent person than it is for that innocent person to get out of prison. With Barred, we finally have a lucid explanation of how exactly this infuriating feature of our system persists. Medwed is one of the nation’s leading scholars on wrongful convictions and one of the nation’s leading lawyers at helping free innocent inmates. In this groundbreaking book, Medwed brings his expertise as both a scholar and a practitioner to illuminate how something that makes no sense happens routinely. Anyone interested in understanding the magnitude of the chasm between true justice and our actual criminal justice system, and in learning how we as a society might shrink it, should read this book.”—David Dow, author of The Autobiography of an Execution

From the Publisher

2022-07-13
Exacting examination of the challenges involved in exonerating the wrongfully convicted.

Law professor Medwed, a founder of Brooklyn Law School’s Second Look Program, writes with passion and expertise regarding the Kafkaesque universe of those incarcerated for serious crimes who later establish “actual innocence.” While public perception focuses on scientific advances and some success stories, the author rightly sees this as an unacknowledged crisis. The system, he writes, “is stacked against the innocent, contrary to the popular belief that the post-conviction process is full of escape hatches from the prison cell.” In four sections, the author fleshes out the complex legal elements at play, examining the appeals process, formal post-conviction remedies including habeas corpus petitions and the Supreme Court, and parole and executive clemency. In his sharp investigation, Medwed finds widespread procedural barriers, “the wide range of rules that govern the practice of litigation after conviction.” Essentially, many wrongfully convicted individuals are barred from seeking post-trial relief due to factors ranging from the labyrinthine appeals process to the cognitive biases of judges who are asked to reexamine prior cases. Similarly, notwithstanding some embrace of a “progressive prosecution movement,” including internal conviction review units, Medwed sees continued reluctance on the part of many prosecutors to unearth such miscarriages of justice. “Convictions,” he writes, “have become a metric by which an individual prosecutor and an office as a whole can be assessed.” The author illustrates these disheartening assertions with a variety of often shocking case studies, including some he pursued with the Second Look Project and other innocence-focused groups, and he ends each chapter with policy prescriptions. In the final chapters, Medwed proposes an evolutionary “new model” for addressing such challenging claims, in the vein of England’s independent Criminal Cases Review Commission, which reviews innocence claims for the appeal process. Though legal jargon occasionally intrudes, Medwed’s narrative is both informative and poignant.

A disturbing, important addition to the literature on America’s addiction to incarceration.

Kirkus Reviews