Cleansing Moments and Retrospective Justice

We live in an era of questioning and requestioning long-held assumptions about the role of race in law, both in criminal prosecutions specifically and in the legal process generally. Certainly, the foundational framework is not new; for decades, both legal literature and jurisprudence have explored in great detail the realities of racism in the legal system. Even among those who might prefer to ignore the role of race discrimination in more than two centuries of American law, denial is no longer a viable or intellectually defensible option. Rather, debate now centers upon whether or not the extensive history of American jurisprudential race discrimination should affect the way we interpret or resolve current doctrinal dilemmas. Perhaps the most well-known example of this requestioning is the burgeoning innocence movement, which emerged primarily from scientific DNA research that established the factual innocence of long-incarcerated (including Death· Row) defendants. The extraordinary impact of the innocence movement lies in the compelling simplicity of its theoretical underpinnings: If innocent people have been and continue to be incarcerated and even executed, upon what claims of legitimacy does our criminal justice system rely? Moreover, if innocent people continue to serve out sentences (and even to await execution on Death Row), is there not a moral as well as legal imperative to reopen their cases and correct the past? To the extent that individual innocence cases may also reveal racial discrimination in the prosecution, conviction, and post-conviction phases, additional attention must be accorded to the impact of such prejudice upon racial communities and upon the credibility of the justice system as a whole.