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Introduction

Edwin Montefiore Borchard was honored in 2007 by Justice Denied—the magazine for the wrongly convicted, as an inaugural member of its Wrongful Conviction Hall of Honor that publicly recognizes the extraordinary contribution deserving people in the United States and other countries have made to rectifying, alleviating, or publicizing wrongful convictions. Justice Denied’s 2007 article about Borchard is included herein as Chapter 1.

Borchard’s interest in wrongful convictions and compensation for persons exonerated of their convicted crimes resulted in him authoring in 1913, European Systems Of State Indemnity For Errors of Criminal Justice, included herein as Chapter 3, and in 1932, Convicting The Innocent: Sixty-Five Actual Errors of Criminal Justice, included herein as Chapter 4.

Convicting the Innocent has not lost its luster as one of the most insightful books published on the topic of wrongful convictions. Seventy-one years after its publication the multitude of causes underlying the cases of injustice it details not only continue to plague the legal system in the United States, but they are arguably more prevalent today than when the book was published, with the exception of confessions extracted by physical violence.

One hundred years after Borchard’s article about indemnifying wrongly convicted persons, one can surmise he would be pleased the federal government and the majority of states have enacted legislation financially compensating persons deemed to meet the applicable statute’s definition of a wronged person. However, it seems likely Borchard would be dismayed that only one state – Texas, which provides a lump sum payment of $80,000 per year of wrongful imprisonment and a generous lifetime annuity – has a system that fairly determines an exonerated person’s eligibility and then adequately compensates that person. As Borchard explains in his 1913 article (Chapter 3), many European countries were more advanced in providing indemnification 100 years and more ago, than is the norm in the United States in 2013. That is still true, except it doesn’t just apply to European countries, because in the “U.S. policy and legislation to ensure the right to compensation for wrongful conviction is among the poorest in the world.” A significant portion of Borchard’s article concerns the history of indemnifying wrongful convictions, which puts the current concerns about state and federal indemnification in the perspective that it is an issue that has been debated for centuries.

Of topical importance in a post-9/11 world is that during World War II, Borchard used his position and legal skills to oppose the federal government’s policies that disregarded individual rights in the name of promoting national security. Some of his efforts defending the rights of people victimized by those policies are explained in Chapter 1.

Borchard was a professor at the Yale Law School for 33 years (1917-1950). Although he had a deep interest in issues related to wrongful convictions and individual rights, during his lifetime he was most well-known as one of the United States’ leading international law experts.

Edwin Borchard’s national notoriety was such that when he died on July 22, 1951 at the age of 66, the New York Times published an 18 paragraph, 740 word Obituary. Borchard’s New York Times Obituary is included herein as Chapter 2.

Borchard was the first consistent voice in this country for innocent people enmeshed in the legal system. So it is important that it be remembered his works laid the foundation for today’s advocates for wrongly convicted persons, and the encouragement of public policies that may prevent wrongful convictions and ensure adequate indemnification when they occur.

Given the legal system’s inertia and resistance to meaningful reforms, it may well be that Borchard’s analysis of the causes of wrongful convictions and the general inadequacy of indemnification for exonerated persons will be as relevant many decades from now as it is today.

Hans Sherrer

July 20, 2013