Tuesday, February 16, 2010

How Many Innocent People Are In Prison? : Dispatches from the Culture Wars

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How Many Innocent People Are In Prison?

Posted on: February 15, 2010 9:09 AM, by Ed Brayton

That's the very difficult question that Radley Balko attempts to answer in an essay at Reason. He begins by noting why this is so difficult to calculate:

Calculating the percentage of innocents now in prison is a tricky and controversial process. The numerator itself is difficult enough to figure out. The certainty of DNA testing means we can be positive the 250 cases listed in the Innocence Project report didn't commit the crimes for which they were convicted, and that number also continues to rise. But there are hundreds of other cases in which convictions have been overturned due to a lack of evidence, recantation of eyewitness testimony, or police or prosecutorial misconduct, but for which there was no DNA evidence to establish definitive guilt or innocence. Those were wrongful convictions in that there wasn't sufficient evidence to establish reasonable doubt, but we can't be sure all the accused were factually innocent.

But there should be little doubt that the number of exonerations brought about by DNA testing is only the tip of the iceberg:

Most prosecutors fight requests for post-conviction DNA testing. That means the discovery of wrongful convictions is limited by the time and resources available to the Innocence Project and similar legal aid organizations to fight for a test in court. It's notable that in one of the few jurisdictions where the district attorney is actively seeking out wrongful convictions--Dallas County, Texas--the county by itself has seen more exonerations than all but a handful of individual states. If prosecutors in other jurisdictions were to follow Dallas D.A. Craig Watkins' lead, that 250 figure would be significantly higher.

He then blasts Justice Scalia's absurd reasoning in claiming that there are very few innocent people in prison:

If the numerator is tough to figure, the denominator is even more controversial. One of the more farcical attempts at writing off the growing number of DNA exonerations came in a concurring opinion that Supreme Court Justice Antonin Scalia wrote in the 2005 case Kansas v. Marsh. Scalia began by dismissing the idea that an innocent person may have been executed in America, explaining that if such a tragedy had occurred, "we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby."

Scalia has probably since become acquainted with the name Cameron Todd Willingham, the Texas man executed in 2004 who was likely innocent. But the justice's pique also betrays an unfamiliarity with how death penalty opposition organizations work. While Scalia is right that proof of an executed innocent would be good rhetorical fodder for death penalty abolitionists, legal aid groups aren't about to waste their limited resources hunting down mistaken executions when there are living, breathing innocents still to be discovered. Moreover, in many jurisdictions, prosecutors destroy the case files after an execution, making any post-execution investigation rather difficult. That we don't know for certain about more executed innocents doesn't mean they haven't happened.

Scalia then cited some absurd math from Josh Marquis, an Oregon prosecutor who has held various executive positions for the National District Attorneys Association. According to the Marquis formula Scalia endorsed, at the time there had been about 200 DNA exonerations. For posterity, Marquis then arbitrarily multiplied that number by 10, to come up with 2,000 wrongful convictions. Marquis then took every single felony conviction over the previous 15 years as his denominator, to come up with a meager .027 wrongful conviction rate. Move along, America. Nothing to see here. Your criminal justice system's performing just fine.

The figure is absurd. First, the subset of cases for which DNA testing can prove guilt is exceedingly small. It's generally limited to most rape and some murder cases. You can throw out the entire body of drug charges and nearly all burglary, robbery, assault, and other classes of felonies. As University of Michigan Law Professor Samuel L. Gross wrote of Marquis in a 2008 article (PDF) in the Annual Review of Law and Science, "By this logic, we could estimate the proportion of baseball players who've used steroids by dividing the number of major league players who've been caught by the total of all baseball players at all levels: major league, minor league, semipro, college and Little League--and maybe throwing in football and basketball players as well."

If the aim is to calculate the percentage of people who claim they're innocent and who actually are, you might throw out all cases decided by a guilty plea, too. But this can also get tricky. According to the Innocence Project, more than a quarter of DNA exonerations included a false confession or guilty plea. The plea bargaining process can also induce innocent people to plead guilty to lesser crimes to avoid charges with more serious prison time, particularly in drug cases.

So what's the correct percentage, or the closest we can get based on the data we have?

The Innocence Project cites a study by Seton Hall's D. Michael Risinger that puts the percentage of innocents in prison at 3 to 5 percent. But that study looked only at capital crimes, and there's yet more debate over whether data gleaned from those accused of crimes that are eligible for the death penalty would translate into higher or lower wrongful conviction rates for those accused of lesser crimes. (Those who argue that it would be higher note that there's more pressure on prosecutors and jurors to hold someone accountable in murder cases. On the other hand, defendants tend to have better representation in capital cases.) But even dropping below the study's floor, using the 2008 prison population, a 2 percent wrongful conviction rate would mean about 46,000 people incarcerated for crimes they didn't commit.

Whatever the percentage, DNA testing has exposed some gaping flaws in the system, calling into question traditional assumptions on the value of eyewitness testimony, forensic evidence, confessions, and the appeals process. (In several cases in which a defendant was later exonerated by DNA testing, appeals courts not only upheld convictions, but noted the "overwhelming evidence" of the defendants' guilt.) Scalia stated in Marsh that an exoneration "demonstrates not the failure of the system but its success," but it would be naive to believe the same systemic flaws exposed by these exonerations in the small subset of cases for which DNA testing is available don't also exist in the much larger pool of non-DNA cases. Put another way, if we now know because of DNA testing that misconduct by police and prosecutors produced a wrongful conviction in a high-profile murder case, it's probably safe to assume that the same problems led to the wrongful conviction of a number of routine drug suspects over the years, too. The difference is that there's no test to clear those people's names.

So these 250 DNA exonerations aren't proof that the system is working. They're a wake-up call that it isn't. Instead of falling back on groups like the Innocence Project to serve as unofficial checks against wrongful convictions, lawmakers, judges, and law enforcement officials should be looking at why there's so much work for these organizations in the first place.

Hear, hear. A few ideas for fixing this:

1. Establish innocence commissions in every state whose sole purpose is to review the record in every conviction and look for cases where the testimony and the evidence is conflicting, where details were left out before the jury and so forth.

2. Stop electing prosecutors -- and judges. It is the need to run for reelection that forces prosecutors and judges to be concerned about their conviction rate rather than their rate of being right.

3. Overturn last year's appalling Supreme Court decision and explicitly grant a right to access to DNA evidence for all defendants and set up a lab to provide such testing at public expense. Congress can do this without a problem (the court ruled that there is no constitutional right to such evidence, but Congress has the authority to establish a statutory right to it).

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What's even worse is the number of people who are innocent of a crime who plead guilty to reduced charges in order to avoid the possibility of being convicted of a more serious offense and being sentenced to a longer jail term.

As defense attorney F. Lee Bailey relates in one of his books, when a potential client tells him that he is innocent of a crime, his response is that that's fine but unfortunately being factually innocent is not a defense.

Posted by: SLC | February 15, 2010 9:22 AM


You're dreaming. There is a built-in 30% of the electorate that will NEVER go for this - the right-wing fundies. Then bullshit emotional appeals by Republicans will guarantee they get well over 50%.

Not to say that you shouldn't try, but I would not hold my breath. The vast majority of judges out there honestly believe that before DNA testing was invented, the number of wrongful convictions was ZERO. And the right-wing political apparatus is 1000 times better funded and equipped for judicial elections, so those are going to be the vast majority of judges til the end of time.

Excuse me while I go throw myself off of a building in despair.

Posted by: Disgusted Beyond Belief | February 15, 2010 10:10 AM


Equally bad: (I've said it before) For every innocent person in prison, a guilty one is walking free.

Posted by: Reverend Rodney | February 15, 2010 10:24 AM


Stop electing prosecutors -- and judges.

Hear, hear; and toss in police chiefs as well -- your country is simply insane to continue doing this . If I explicitly offer money to influence a public official to arrest, or prosecute, or convict someone (or refrain from doing any of those), that's bribery and I can be arrested. But implicitly offering my vote (and collectively, a large number of votes) for such actions? Apparently, that's just democracy.

Posted by: Eamon Knight | February 15, 2010 10:30 AM


Now, I don't want to specifically argue doing anything obviously illegal, but wouldn't be so delicious if Scalia, Alito, Roberts, and Sotomayor got a visit from the DEA based on some trumped up false charges of drug dealing and getting some bad stuff planted at their homes? Ahh...Scalia doing a perp walk. I would pay money to see that.

Posted by: Shawn Smith | February 15, 2010 11:14 AM


I would also allocated at least a small portion of the blame to bad jurors.

Posted by: richardp | February 15, 2010 11:24 AM


I have one nightmare regarding DNA proof of evidence.
How many people are chimeras, and do their tissues seggregate to a large extent?

Posted by: rnb | February 15, 2010 11:51 AM

Excuse me while I go throw myself off of a building in despair.

I've got to start reading slower. I first read that as "building in disrepair" and wondered why you needed to be so selective.

Posted by: Scott Hanley | February 15, 2010 12:17 PM


I agree that wrongful convictions are a serious problems. However, appointing, rather than electing, prosecutors and judges would not solve the problem. Canada has it's share of wrongful convictions and here prosecutors are civil servants and judges are appointed. Perhaps the answer would be more individual responsibility for wanton disregard of due process in addition to payouts from the public purse.

Hard questions, difficult answers.

Posted by: Canadian Curmudgeon | February 15, 2010 12:23 PM


rnb, it would depend on what stage the fusion of the two embryos occurred.

If fusion occurred early enough, the distribution of cells of each genotype would be completely random within any given tissue, and a typical DNA typing would pick up the presence of two sets of DNA.

If fusion occurred later, however, a given lineage of cells could be the product of only one genotype or the other, and it would be possible that (for example) a semen sample and a blood or cheek sample from the same person would give different results.

As far as anyone can tell, chimerism in humans is extremely rare, and early fusion of embryos is more common than late fusion. The number of people wrongly exonerated by DNA evidence is likely to be vanishingly low.

Posted by: bio grad student | February 15, 2010 12:38 PM


I'll tack on one more item to the list: make it so prosecutors, judges, etc. can be held legally responsible for bad trials/convictions. This immunity crap's gotta go, can you imagine how much worse our problem with overzealous cops would be if they had the de facto immunity others in the criminal "justice" system have? I don't know if I've ever held a job where I couldn't be held somewhat liable for doing the job wrong and causing harm to someone. Your average burger jockey probably has to salt the sidewalk in front of the restaurant, and would be liable for someone slipping and falling on poorly maintained conditions. Why not do the same for someone in a position of power like DA or judge? Crap, "position of power," think I just answered my own question. ;)

Posted by: Rob Monkey | February 15, 2010 1:55 PM


There is also the subset of abuse crimes, which bad as they are, are accompanied by a presumption of guilt unless one can prove the negative case of one's innocence. For a particularly egregious example, here's the story of a boy arrested at age 13, and at age 15 tried for a heinous crime for which no physical evidence was presented, without a jury, (before a single judge) without a shred of physical evidence, conflicting witnesses, charges of physically impossible acts, witness tampering, witness coaching, witness leading, ulterior motives, and so on. He did not express contrition--because as an idealistic youth he thought his innocence was shield enough--and has been incarcerated for 10 years:

Posted by: Grumpy | February 15, 2010 2:02 PM


Remember the big Supreme Court prosecutorial misconduct case came from Iowa, where judges and prosecutors aren't elected, so that only gets you so far.

Posted by: Ace of Sevens | February 15, 2010 3:56 PM


First, by law, the definition of guilty is simply the conviction by a jury of your peers in a fair trial. Fair being defined as the defendant being adequately represented by counsel as paid for by the defendant or provided for according to community standards. The community, by allocating funds to the PD, defines what is meant by adequate. It can be quite low. But low, vastly overworked counsel, is perfectly legal. Sad as it may be that communities don't allocate funding for DNA testing on behalf of the defendant using the PD office it does not make the conviction any less fair according to community standards.

Once your convicted you are, by definition, guilty unless there is either proof of a mistrial or substantial material evidence that the person convicted could not have done the crime. The state has no reason or motivation to dig up evidence after the fact. The trial is over, the case has been tried and the person found guilty. By law he/she is guilty.

Then again just call for a show of hands in your average jail ... surprise ... they are all innocent.

I think the election of judges and the use of the position of prosecutor as a stepping stone to political office to be appalling. I also thing that there has to be some more reasonable way to allocate funds to the PD than just leaving them the crumbs left over from the DA's table. With funding the PD might get DNA testing.

Posted by: Art | February 15, 2010 4:40 PM


Stopping the practice of so called 'expert witnesses' for hire would improve the judicial process.

Expert witnessing is big money so the professionals opinion tends to agree with whatever illusion the purchasing side wants to conjure up.

What I find especially absurd is when two psychiatrists, one hired by the defense, one by the prosecutor, both examine a defendant for thirty minutes and reach a conclusion. Its' a safe bet the prosecutor's expert will find the accused is sane enough to stand trial and was sane at the time of the crime, while the other expert will report the entirely opposite conclusion.

Should a juror flip a coin to gauge which witness is correct or how each expert comports themselves on the witness stand - does the best actor win?

Posted by: Pinky | February 15, 2010 4:56 PM


Followup to #9 from Canadian Curmudgeon:

Of course since Canada has no death penalty (until our current PM, Little Father Harper, reinstates it by diktat), there is at least a chance for the wrongfully convicted to be freed, usually.

Posted by: Metro | February 15, 2010 5:32 PM


C'mon people, we KNOW that the fact that someone is arrested and charged with a crime PROVES that they're guilty of that crime!!!!!eleventy!!!!!

-----end psychotic rant------

Scary thing is, I've had students, and a couple of parents either come flat out and make this claim, or something along the lines of "if you were arrested, you must have done something wrong."

Posted by: dogmeatib | February 15, 2010 5:48 PM


Well if you read what Marquis wrote you'd discover that he took the number of 400 from Professor Gross' own study published in the same journal Marquis' article was published in (Journal of Criminal Law at Northwestern Law School, Winter, 2005) and agreed that were probably some more actual innocents (not OJ innocent but like really didn't do it innocent) so he took that number and multiplied ten times to 4000 (for the same time period Gross used 89-03) and then divided that by JUST the number of forcible rapes and willful homicides for the same period. So not just felonies but only the most serious ones likely to be litigated. The result is an error rate of .0026% or put another way an accuracy rate of 99.84%
You're more likely to be injured by a clumsy doctor than wrongly convicted. Doesn't mean you should ignore it or that the people wrongly convicted don't deserve compensation but at least it is not the absurd claim by 5 out of 100 people in prison are factually innocent.

Posted by: Bunky | February 15, 2010 8:06 PM



2. Stop electing prosecutors -- and judges. It is the need to run for reelection that forces prosecutors and judges to be concerned about their conviction rate rather than their rate of being right.

Don't forget to disable their egos while you're at it.

Anyway, how does the logic for not electing judges/prosecutors not also imply that we shouldn't elect legislators or presidents? Or, at least imply that we should elect them for life. After all, if they don't need money for re-election, they should be totally immune to influence by special interests, right?

Also, I haven't ever heard of a judge failing to win re-election. Is that something that has actually happened even once?

Posted by: Miko | February 15, 2010 8:32 PM


Miko @ 19:

. . . I haven't ever heard of a judge failing to win re-election. Is that something that has actually happened even once?

Michigan voters threw out an incredibly defective conservative ideologue that was Chief Justice of the Supreme Court in 2008. Democrat Diane Hathaway not only unseated a Chief Justice, but it ended a nine year reign by conservatives.

I concur with Ed however that prosecutors and judges should be appointed not elected. I'll take that one step further on a slight tangential angle and also advocate that County Commissioners should also appoint the County Sheriff rather than Sheriffs running for elected office.

These roles require functional excellence from people formally trained in the profession, they should not be construed as political positions.

Posted by: Michael Heath | February 15, 2010 9:03 PM

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Important article on the number of innocents in prison. There's lots of reforms that need to be made in the American criminal justice system. Brayton suggests a few at the end of the article, which is a good discussion of why it is difficult to estimate how many innocents have been convicted and are in jail.

Posted via web from reannon's posterous

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