Should the United States Establish a CRIMINAL CASES REVIEW COMMISSION?

Article excerpt

The English experience suggests that due process reforms may be stifled, rather than promoted, by the establishment of a CCRC-style institution. Innocence commissions may be a more effective measure for correcting and preventing wrongful conviction in the United States.

In the United States over the the past 10 years, post-conviction investigation of cases of factual innocence and exposure of wrongful convictions have, in large part, been the province of innocence projects. Such projects have emerged in the United States, Australia, Canada, and, to a lesser extent, the United Kingdom to investigate claims of factual innocence and miscarriages of justice. The United States now claims innocence projects in 35 states, with 7 states possessing more than one.1

While innocence projects have effectively induced exonerations, and through post-mortem case review have exposed American due process to intense scrutiny, they are typically under-resourced, overwhelmed by demand, and relatively powerless to significantly influence statutory changes to due process. A compelling question, then, is: Does there exist an effective alternative to innocence projects-one that operates with the same investigatory vigor and efficacy, is better resourced, and possesses the necessary state-derived legitimacy to make it an effective force for due process change?

In 1995, the United Kingdom created the Criminal cases Review Commission (CCRC) to address miscarriages of justice. The model has spawned notable interest in theUnited States,2 Australia, Norway, New Zealand, and Canada. To inspire debate within the American legal community concerning the potential efficacy of creating such an institution in the United States, this article introduces readers to the CCRC, outlines some of the current criticisms, and considers possible implications to American due process.

A brief CCRC history

The CCRC was established by Parliament under the Criminal Appeal Act of 1995 following recommendations from the 1993 "Runciman Commission," a royal commission charged with investigating how effectively the English criminal justice system secured convictions of the guilty while ensuring acquittals of the innocent.3

By its own account, the CGRC is an independent body charged with the thorough, impartial, open, and accountable investigation of suspected miscarriages of justice in both convictions and sentencing in England, Scotland, Wales, and Northern Ireland.4 The depth of the commission's investigative powers enables it to actively investigate miscarriage-ofjustice claims before a decision is made on whether or not to refer the case to the appeal courts. The commission, which rarely accepts cases that have not previously been appealed, investigates matters where a miscarriage of justice or wrongful conviction has been alleged and is not restricted to innocence-based applications.5 In fact, "innocence" is not one of its concerns.6 As such, investigations that lead to non-referral of cases are considered successes since they confirm the validity of the original convictionand validate the CCRC's role of maintaining confidence in the criminal justice system.7

Before the CCRC was established, post-appeal applications in the U.K. were submitted to the Home secretary's Criminal cases Unit (CCU), where, in a similar manner to the provisions previously operating in Canada and currently operating in Australia, the executive body determined whether to refer cases to the Court of Appeal. Under the old system, few cases reached the Court of Appeal. This changed significantly with the establishment of the CCRC.

As of March 2003, the CCRC had received more than 5,500 applications. Of those completed, 196 (4 percent) were referred to the Court of Appeal on the basis of conviction and sentencing appeals. Of the conviction referrals, 77 (64 percent) were quashed, and 44 (36 percent) were upheld.8

Expanded appeal provisions in England allow the CCRC to refer claims of wrongful conviction to the Court of Appeal (or, in cases of a Magistrates' Court conviction, the Crown Court) when there is a real possibility of overturning the conviction because:9

* An argument was not raised in the court proceedings;

* Evidence was not presented to the court; or

* Other exceptional circumstances were present

Criticism of the CCRC

For critics of the administration of justice in Britain, the appearance of the CCRC signalled parliamentary acknowledgment of the failure of due process. …