The Immortal Accusation

Abstract

In the American criminal justice system, accusations have eternal life. Prosecutors, judges, and prison officials regularly consider dismissed charges and even prior acquittals in the defendant’s criminal history when making decisions ranging from the filing of charges to the imposition of punishment. This Article argues that the criminal justice system’s reliance on “accusation evidence” should be understood as furthering its larger allegiance to attaining and preserving findings of guilt.

Once the government obtains a guilty plea or verdict, appellate courts rarely overturn convictions based on concerns about the accuracy of the conviction; indeed, post-conviction review procedures often are structured to prevent meaningful consideration of innocence claims. Appellate courts will eventually cease reconsideration of the conviction altogether, even, in many cases, where legitimate questions about the defendant’s guilt remain. A criminal accusation that did not result in a conviction, on the other hand, can be reconsidered forever – in a variety of contexts, by a variety of government actors, applying low or no standards of proof. Once guilt is obtained, in other words, the system aims to preserve it; and if guilt is eluded, it will pursue it.

The pursuit of guilt as a value unto itself, distinct from the pursuit of truth or the desire to convict the culpable, distorts our system of justice in significant ways. The Article examines the implications of the systemic dedication to the pursuit and preservation of guilt, and suggests ways in which it might, and should, be dismantled.