Tens of thousands of innocent people are languishing in prison across the United States, according to studies cited by the Innocence Project. And while dedicated lawyers, legal scholars, and law students have succeeded in securing the freedom of hundreds of wrongly convicted Americans, countless other innocent inmates have little hope of reprieve.

In his new book, “Barred: Why the Innocent Can’t Get Out of Prison,” Harvard Law School Visiting Professor Daniel Medwed ’95 argues that the justice system’s stringent procedural rules are largely to blame for the ongoing punishment of the innocent, guaranteeing criminal defendants just one opportunity to appeal their convictions and little opportunity to seek relief thereafter. At a recent event sponsored by the Harvard Law School Library, Medwed spoke with Harvard Law Professor Alexandra Natapoff about his new book and the many systemic barriers to overturning wrongful convictions.

Medwed, University Distinguished Professor of Law and Criminal Justice at Northeastern Law School, described what motivated him to write the book. “There is a lot of literature about what leads to wrongful convictions in the first place,” he said, including factors such as mistaken eyewitness identification, prosecutorial and police misconduct, ineffective legal counsel, dubious or flawed forensic evidence, and false confessions. “But there has been a lot less written about why, when someone who is innocent has fallen through the cracks and been wrongly convicted, why it is so hard to free that person,” he said.

A former public defender and appellate and post-conviction litigator at the Legal Aid Society in New York, Medwed spent four years running a small Innocence Project at Brooklyn Law School where he and his students litigated these cases. “I just kept banging my head against the wall,” he said. “It was so hard to overturn these cases, even with a mountain of newly discovered evidence suggesting that these folks were innocent.”

He also believes that many people in this country are convinced that public defenders spend their lives getting guilty people out on technicalities and that if an innocent person does get convicted, there are endless appeals. For many people, he said, “there is an unjustified faith in the system, and I wanted to write a book that exposed this for a popular audience.”

In fact, Medwed said, procedural barriers to litigating cases after trial, which are baked into the system, all too often keep innocent people in prison. 

“When someone is convicted, either at trial or through a plea bargain, there are certain hidebound and traditional remedies that are available,” he said. “They include certain motions for a new trial, but those are usually very time limited and aren’t good vehicles for proving innocence,” he added. More broadly, he said, there are three sorts of remedies that exist in almost every state.

First there is the direct appeal. “What’s shocking to me, and I did not even realize this in law school, there is no right to appeal in the Constitution,” he said, “There’s a reference to the jury trial twice, but there’s nothing about the right to appeal.” Fortunately, every state gives you the right to appeal your case at least once directly, he added.  But the appeal is not the way to overturn an error based on innocence. “You can’t bring any new evidence in the appeal beyond what happened in the trial.”

That brings us to the second category, he said, ancient writs. First, habeas corpus, a Latin term meaning “you have the body,” which derives from 12th century England. The idea behind it, he said, is you have the opportunity, either before the trial or after trial when you are being detained, to force the government to justify “why they have the body” and to hold the government accountable. “What’s beautiful about this writ? It’s not a vertical remedy. It’s sometimes called a collateral remedy or a post-conviction remedy,” he said, and in theory you can bring up new arguments.

“Here’s the problem,” Medwed said. “Habeas is typically only suitable for constitutional or jurisdictional errors. And in 1993, the U.S. Supreme Court said that a freestanding claim of actual innocence is not recognizable in the federal habeas corpus petition. In other words, it doesn’t violate the constitution to imprison or to execute an innocent person.”

The second post-conviction remedy, Medwed told the audience, is the writ of coram nobis, another term descended from English common law. Dating from the 16th century, and meaning “before us,” coram nobis is a court order responding to important new facts that come to light after trial that shine new light on the original judgment. “It’s a chance to go back to the original trial judge if you found newly discovered evidence that casts doubt on the integrity of the trial conviction.”

“Sounds great, right? But here’s why it’s not so great,” he said. Once they make decisions, judges, like the rest of us, are unlikely to change their minds, even in the light of new evidence. “It’s confirmation bias.”

And finally, said Medwed, there are executive branch remedies. “When Chief Justice Rehnquist said in that 1993 Supreme Court decision that actual innocence isn’t recognizable by itself in federal habeas corpus … he said that that clemency was a fail-safe for the actually innocent.” There are many problems with this, according to Medwed, “including the fact that executive branch officials are reluctant to look at new facts related to guilt or innocence, seeing that as the prerogative of the judicial branch, and as overstepping.”

In fact, the people who are most likely to get clemency are those who are seen as having demonstrated remorse and accepted responsibly. But if you are innocent, he asked, how can you be forgiven for something you did not do? So, the innocent are less likely to benefit from clemency.

At the event, Natapoff and Medwed also discussed the fact that despite the centrality of the trial to our adjudicative process, 95% of all the criminal convictions in this country are the result of a plea not a trial. “Another barrier to consideration of the innocent is the fact that innocent people plead guilty under pressure of plea deals and long sentences and the death penalty all the time,” said Natapoff, whose latest book is “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal.”

Towards the end of the discussion, Natapoff asked Medwed about the impact of the reality he has written about on our criminal system. “What shadow has that cast?”

“The shadow is enormous,” he said. “I write about and litigate and do reform work. In the area of post-conviction remedies and appellate procedure, because that’s what I know,” he said. “But the public takeaway is we just have to get it right the first time. We have to get it right at the front end.”