Historically, procedural bars in California have made it nearly impossible to present a Habeas claim: 94% of the capital habeas cases that have been brought before the California Supreme Court have been denied.
Up until 2016, California had one of the highest innocence standards in the country, as “new evidence of innocence” necessary to request review was defined almost impossibly narrowly as “evidence that was not available or known at trial that completely undermines the prosecution’s case and points unerringly to innocence.” Often this has been limited to DNA evidence – which presents yet another hurdle, as DNA is estimated to be collected in fewer than 10% of crimes.
The standard was lowered by the passage of SB 1134, which sought to bring the standard in line with forty three other states. Rather than evidence which points “unerringly to innocence,” the standard now mandates that the new evidence must create “a reasonable probability of a different outcome.” Even with this new precedent, few have found success in challenging their convictions.
The first is a model for incarceration which prioritizes treatment and rehabilitation over furthering cycles of trauma.
The second is a model for criminal justice post-conviction review which protects human rights and ensures equal application of the laws. These models can be adapted to the U.S., and in fact, have already started to roll out in some states.
"From a rule of law perspective, one of the worst things that can happen is that a person who has been wrongfully convicted remains convicted as a result of an inaccessible conviction review process.
A situation of this kind may be interpreted as showing that the justice system has not only failed to judge the case correctly (leaving the responsible party to commit further offenses), but has also failed to take responsibility for the situation and provide redress to the wrongfullyconvicted individual.”
Sara Hellqvist
Department of Criminology
Stockholm University, Sweden
In 2004, Norway revamped its conviction review process for post-appeal access to review after a high profile wrongful conviction, where a man was wrongfully convicted for a double homicide, and spent 25 years in prison before being exonerated. The government found that the existing post-conviction review system in the courts was riddled with conflict of interests and lacked objectivity.
Ultimately, the Norwegian government found that the lack of objectivity of the existing court system was primarily the impediment to the access-to-justice. Relying upon other concepts forindependent post-conviction commissions in England and Scotland, Norway designedits own independent commission model.
The Norwegian Criminal Cases Review Commission is an administrative body, located outside of the existing court system and independent of the police, criminal courts and prosecution. The Commission decides whether convicted individuals are entitled to the opportunity to have their case re-examined by a separate, independent court, based upon 3 grounds for review:
1) government misconduct or false evidence presented to the jury
2) Procedure employed conflicts with international law or UN human rights rules of law
3) New circumstances or new evidence is procured which seems likely to lead to an acquittal, summary dismissal or reduction in sentence.
There is notime limit for an application to the review unit, nor any limit on the number of applications. If review is granted, the case is re-examined at a different, independent court from the original case.
The United States has a comparable history in recording the role that government misconduct holds in the phenomenon of wrongful convictions, however there has not been a similar examination of the post-conviction review process in this country. North Carolina is the only state that has enacted a post-conviction review commission.
The National Registry of Exonerations compiled exoneration records going back to 1989, through a regularly-updated national database. In the most recent report from the National Registry analyzing recent exonerations, government misconduct was listed as the leading contributing factor for wrongful conviction – especially in homicide cases, where government misconduct was a primary factor in 85% of wrongful convictions. The group keeps a separate registry for “group exonerations,” which account for an additional ~38,000 groups of innocent defendants “who were deliberately framed and convicted of crimes as a result of a large-scale pattern of police perjury and corruption.”
As of May 30 2025, the National Registry of Exonerations put California at 292 individual exonerations since 1989. The leading causes of individual wrongful conviction in the United States are also the leading contributing factors in California: false and unreliable evidence, illegal conduct and serious errors by police and prosecutors, a lack of adequate defense, mistaken witness identification, and false confessions
Police misconduct has been a particularly prominent factor in recorded wrongful convictions in California: 171 out of the 292 known exonerations in the state come from the Rampart Scandal alone, which involved over 70 officers in the early 2000s planting false evidence, stealing narcotics, perjuring, and committing brutal acts of violence.
Further groups of police misconduct resulting in large group exonerations were noted by the National Registry:
1) LAPD misconduct in the central division, in 1999, which resulted in 17 exonerations
2) Oakland Police Department “Low Riders” scandal of 2000, resulting in 75 exonerations
3) Pittsburg Police Department suppression of exonerating evidence violations discovered in 2016, resulting in 15 exonerations
4) the Orange County Sheriff Department evidence integrity issues resulting in 53 exonerations.
These 160 individuals involved in "group exonerations" are registered separately than the 292 individual exonerations with the National Registry. If the additional 122 exonerations from the Rampart scandal and 160 exonerations from the group exonerations were included in the total number of exonerations for California, the total would be over 570. In this context, the group exonerations based upon government misconduct scandals alone would constitute over 75% of the exonerations in California since 1989.
There is no system of post-conviction review for incarcerated individuals that allows for an independent, objective review of claims related to government misconduct or claims of racial bias.
There are two basic avenues for review in California. In the direct aftermath of a conviction, one can submit a direct appeal to the Court of Appeals which covers that geographic region. This often involves a strict deadline and can only include evidence presented at trial.
However, if one uncovers further information of misconduct after trial, an individual can file a petition for writ of habeas corpus. A habeas petition procedure offers the possibility of much more inclusive review of evidence relating to a case, because it permits a court to consider evidence outside the record of conviction.
However, habeas petitions are constrained by many procedural bars, many of which cause significant impasses for incarcerated individuals seeking review. Until very recently, habeas review was largely restricted to new evidence of actual innocence that was not available at the time of trial (largely limited to DNA evidence.) This evidentiary restriction has been theoretically expanded by new laws which have defined “new evidence.”
A fundamental problem for most incarcerated individuals seeking post-conviction review is the struggle to ascertain this required "new evidence" while incarcerated – especially evidence which was suppressed by the government at the time of trial.
It goes to reason that if the government suppressed the evidence in preparation for trial, the government is unlikely to share this evidence in the post-conviction context.
There is also a large disparity across different counties and courthouses of California in terms of willingness to share this evidence . Accordingly, the application of new laws intended to increase post-conviction discovery access are disparately applied by government offices. As a result, there are entire counties and courthouses where post-conviction review is near to impossible for habeas petitions claiming wrongful conviction based upon government misconduct.
In a democracy, separation of powers requires the operations of government to be conceptually and institutionally distinguishable, thereby maintaining the integrity of each.
In California, the criminal justice system should reflect this integrity by maintaining separation between police, prosecutorial bodies, and courts – a justice system which operates “without fear or favor.”
A proposed California Post-Conviction Review Commission model takes itsinspiration from the Nordic model and similar models that have existed for decades in countries around the world and even in other U.S. states, such as North Carolina.
The Commission itself is not an alternative court or judicial body. It’s an independent government body that provides initial review and independent investigation of cases that are formally submitted for the purposes of determining whether a convicted individual will have the opportunity to have their cases re-examined by a new, separate court that has no connection to the county of conviction. The primary focus is on investigation.
Similar to the Nordic model, the Commission will be made up of 8 members (5 Permanent Members, 3 Alternates) who are without professional bias or conflict of interest and without prior law enforcement experience. 5 of the members will have a law degree, the remaining members will have education and professional experience in non-legal matters. To this end, the members will be appointed by the Governor.
The Commission will have independent subpoena powers and an independent referee (specifically not a past member of the prosecution or defense bar) who can take evidence. The applicant will be provided appointed counsel for thepurposes of presenting the claims and requests for investigation/review. Where the Commission grants review, the case will be referred to an independent Habeas Unit for a formal habeas proceeding, in the posture of a case when the Order to Show Cause has issued. Appointed counsel may continue to represent the applicant as petitioner inthe courts.
Proposed California Habeas Units will be created inside existing civil courthouses in California, with three in Northern California and six in Southern California. These units will serve to process habeas petitions with claims of wrongful conviction based upon government misconduct as well as post-conviction claims under the Racial Justice Act. The units will be comprised of three-judge panels (with a preference forjudges with civil experience), with one judge assigned to the evidentiary developmentand litigation of the case. The panels will not include past prosecutors from any California counties. The Governor is responsible for appointing the judges to eachpanel. All judges will sign a conflict of interest statement and not be assigned to caseswith connection a judge’s geographic connections and history. All three judges will be responsible for issuing a written decision following the development of evidence in the case. The units will have staff separate from the assigned courthouse. All units will have online filing systems and provide online access to documents and briefing.
California is already obligated to review these petitions which are being filed in the courts, thus this would not create any additional costs or obligations.
This Commission would merely address a structural problem in the criminal justice which has been acknowledged and unaddressed for decades.
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