Wrongful convictions: Are they rare or frequent or what?
Police, prosecutors, judges and others inside the criminal justice system tend to criticize the investigative journalists (like me), the law professors, the defense lawyers plus others who “go on and on” about wrongful convictions. Get over your misguided obsession, the insiders scold. Millions of men and women commit crimes every year, and wrongful convictions are a tiny percentage of all arrests. The U.S. criminal justice system is the greatest in the world, the insiders say. Mistakes resulting in wrongful convictions are so rare as to be insignificant.
They are misguided, with a caveat. Here’s the caveat: The U.S. criminal justice system consists of a prosecutor (frequently but not always called a “district attorney) in each county (or parish or other localized term) of each state. The total number of district attorney jurisdictions tops 2300. Further, each state is served by at least one U.S. attorney, a federal prosecutor enforcing federal laws. Some jurisdictions are completely devoid of wrongful convictions as far as can be determined. Other jurisdictions are beset only occasionally by wrongful convictions. Still other jurisdictions rack up wrongful convictions year after year.
Caveat over. The U.S. criminal justice system, when looked at overall, produces way too many wrongful convictions–at least a couple dozen every year, on average, and maybe far more.
DNA testing, available in reliable form since the late 1980s, has proven that ar0und 300 convicted men and women didn’t do the crime. Other investigative efforts, devoid of DNA material, have proven wrongful convictions in at least 100 additional cases since the 1980s. That’s way too many.
How many wrongful convictions are going undetected? Maybe a lot, maybe only a few. Why the ambiguity? Because in most jurisdictions, only a small percentage of arrests–5 percent is a fair generalization–make it all the way to trial. Some men and women who are arrested never face prosecution because of weak or non-existent evidence. The prosecutor never issues a charge, or eventually drops the charge. When charges stick, the majority of defendants sign a plea agreement. They might be guilty, they might be innocent, but they worry that proceeding to trial might mean a long prison sentence. Pleading out, on the other hand, might result in a shorter prison term or even probation. When a plea agreement is the result, journalists and other outsiders can rarely determine if a miscarriage of justice has occurred.
So, only the arrests proceeding to trial–remember, that’s perhaps 5 percent in many jurisdictions–are the only cases that can be monitored with a significant degree of knowledge.
When wrongful convictions are compared to cases going to trial, rather than to all arrests, the percentages change drastically. Besides, up to a point, percentages are irrelevant. Even one wrongful conviction in a jurisdiction is too many–just like one airplane crash per a million takeoffs/landings is too many, just like one fatal case of food poisoning at a restaurant is too many.
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I don’t think most people realize the unbelievable amount of unchecked power that prosecutors hold. They’re accountable to virtually no one, and their power exists not just in their ability to prosecute people, but in what people are actually charged with, plea deals that are handed out, deals with informants, etc. It’s pretty frightening.
Sara is totally perceptive. I will elaborate on her theme in future posts. For four years, I led a team of other journalists, lawyers and database researchers studying the role of prosecutors, including their involvement in wrongful convictions. The book-length study can be viewed online at the Center for Public Integrity Web site, http://www.publicintegrity.org, under the title “Harmful Error.”
In response to another comment. See in context »Thank you Steve for an enlightening article. Seems like there isn’t a day that goes by that we don’t read about prosecutorial misconduct, mostly race based. We need a total overhaul!
In some jurisdictions, it does seem like prosecutorial misconduct (and sometimes police misconduct, including those who work in law enforcement crime laboratories) is a daily occurrence. The situation in those jurisdictions quite likely will never change unless enough voters tell the elected district attorney that enough is enough. Thank you for your awareness, Cheryl.
In response to another comment. See in context »Thanks for the great article, Steve. I find this last point to be particularly important with regard to prosecutorial abuses, I thought I would throw in my two cents:
In a society dominated by the ten-second soundbyte, no DA will win re-election by being “soft on crime”. The ugly truth is that convictions win votes, and candidates are rarely given adequate opportunity to explain why he or she chose not to pursue the maximum possible punishment for the crime alleged. Combine this with some collective bloodlust and throw in the essentially unreviewable “prosecutorial discretion” doctrine, and we can easilty find ourselves in a system governed by a mob mentality. Dangerous stuff indeed, and likely not at all what the framers had in mind.
I am looking forward to your further articles on this subject.
In response to another comment. See in context »Your take might sound cynical to some others participating in this conversation, Tara. I suspect, however, that what you state is correct in many jurisdictions. Prosecutors are prone to say that they take seriously their sworn duty to seek justice and only justice, that winning or losing cases must become secondary given their oath of office. Yet surely no prosecutor wants to be perceived as soft on crime by dismissing shaky cases or negotiating plea agreements on every high-profile matter.
In response to another comment. See in context »Steve,
First, props for tackling this tough issue.
My personal question is how often do you think part of the problem is lack of education among the general public. I’m a younger person, and I was talking with some of my more hoodlum peers, and their understanding of their rights as citizens as shoddy. What is crime, what you can do or not do when stopped, arrested, detained, etc. How much of this ignorance is the problem?
I wish I knew the answer to your excellent question. It is almost certain, based on my decades of observation, that ignorance about the criminal justice in general and the role of specific players (prosecutor, judge, etc.) lead to at least two negative consequences:
In response to another comment. See in context »First, the jury pool is filled with credulous women and men. Second, it is difficult to send a clear message to prosecutors about job performance when they seek election/re-election if hardly any voters have scrutinized the four years in office in terms of wrongful convictions, overcharging/undercharging of defendants, crime prevention programs, etc.
Your analysis of the numbers is wonderful, particularly the fact that cases that are dropped or pled (pleaded?) out are totally unrepresented in the statistics.
However, I don’t agree that one case of food poisoning is too many, or one takeoff or landing in a million. Perfection is unattainable. You know that, Steve.
So how many crashes are acceptable? One in 10 million? One in a 100 million? I think we must answer this question as a society. Otherwise it’s just waay too easy to wag fingers and make money off outrage.
This especially bedevils our health care system, by the way. And funny you should mention airplane crashes–if ever there was a FABULOUS model for facing and fixing problems, it’s the forthright, transparent FAA accident investigation regimen! Would that that model could be applied to medical mistakes….and perhaps justice system goof-ups. Let’s adapt a system that goes after facts and fuck-ups rather than blame.
Mark,
I would have to respectfully disagree with your feeling that a certain amount of preventable death is acceptable. This kind of thinking puts a price on human life, which gets tricky.
According to the Innocence Project, an organization founded to exonerate wrongly convicted felons (mostly men) using DNA evidence and other investigative methods, “There have been 251 post-conviction DNA exonerations in United States history.” About seventy percent of those are minority men.
Anyone would be devastated by such a wrongful conviction. I can’t imagine spending 10-15 years behind bars for crimes I didn’t commit. Let alone how such a travesty would devastate my family and destroy my life. But, it happens so some one most every day. The justice system doesn’t seem to care and in fact can be obstructionist when entities like the Innocence Project intervene on behalf of those who are wrongfully convicted. It’s as though those so wronged become “disposable”; and not worthy of a second inquiry that might show they are innocent. That’s horrible.
A pathetic axiom of the courts is that it takes money to buy justice. Today’s lock-em up and throw away the key mentality no doubt gives many prosecutors carte blanch to sidestep their responsibility to prosecute ethically and honestly; but there’s just one problem. The real perpetrators are still at large and free to commit the same crimes that innocent men have been imprisoned for. Shouldn’t this be a concern to those high minded people who are so adamant about prosecuting crime in the first place?
The age old adage “It’s better to free 10 guilty than to convict one innocent” and “the presumption of innocence” are the foundational premises behind our constitution. Precious life, a gift from God and life, liberty and the pursuit of happiness are supposed to be protected by our constitution. Politics, Power and Profits have broken our system on many levels, especially in the smaller jurisdictions. I will refer to it as “F.E.A.R. Driven Justice” False Evidence Appearing Real. The need to win at any cost or to force plea deals that scare “innocent persons guilty” and once plead become nearly impossible to appeal; fills our prisons with innocent victims of justice, slants conviction rate stats and gives the public the perception that those in power are truly seeking justice and protecting them evil. One destroyed life; one destroyed family is ONE too many in my opinion. But hey, most people say it doesn’t affect me so why should I care? Ignore it and the slogan will read: “Injustice, coming to someone near you soon!”
The cost of innocence is not only represented by the loss of one’s liberties as a result of a wrongful conviction; but also by the financial struggle of affording a good defense that is many times over-powered by the unlimited budgets and resources of local prosecutors. Conviction stats generate funding and political support that translates into “credibility” of the system and it’s process. Coupled by the collusion that exists between local agencies such as law enforcement, social services, contracted “experts” and others that all have a financial gain with their relationships to one another. For example if a contracted counseling agency doesn’t produce “favorable results” for the prosecutors office, that contract may get replaced by one that does. And as we continue to watch the number of exonerations climb and hear more about defective lab testing, expert testimony and shoddy police work; how can the common citizen have faith and confidence that true justice can be served by a system that consistently fails by the same errors over and over again? If we analyze the failures in the cases of these people that have been wrongfully convicted; how can we accept that the prosecutors prosecuted and “unbiased” jurors convicted without any definitive or corroborated proof positive? The assumed credibility of government and it’s witnesses seems to outweigh that of the accused and places “beyond a reasonable doubt” completely off the map!
Steve, this was shared with me and wanted to share it here.
The following is taken from a quote used in an opinion reversing a conviction due to the misconduct of a prosecutor:
“A prosecuting attorney is a public officer, acting in a quasi judicial capacity. It is his duty to use all fair, honorable, reasonable, and lawful means to secure the conviction of the guilty who are or may be indicted in the courts of his judicial circuit. He should see that they have a fair and impartial trial and avoid convictions contrary to law.”
“Nothing should tempt him to appeal to prejudices, to pervert the testimony, or make statements to the jury, which whether true or not, have not been proved. The desire for success should never induce him to endeavor to obtain a verdict by arguments based on anything except the evidence in the case, and the conclusions legitimately deducible from the law applicable to the same…”
It seems that they (the prosecutors) frequently exert their skill and ingenuity to see how far they can trespass upon the verge of error, and generally in so doing they transgress upon the rights of the accused.”
“It is the duty of the prosecutor to see that a defendant has a fair trial, and that nothing but competent evidence is submitted to the jury, and above all things he should guard against anything that would prejudice the minds of the jurors, and tend to hinder them from considering only the evidence introduced”
Judges who used to serve as prosecutors place language admonishing current prosecutors in appellate rulings often. Those judges understand how low some prosecutors will stoop to place winning at all costs above justice. Judges who did not serve as prosecutors sometimes compose admonishing language, too. Fortunately, plenty of prosecutors honor such language during their daily decision making. Unfortunately, a much too large minority of prosecutors subvert the principle of justice (including fairness and honesty) above all else. My gratitude to Joefriday for sharing the language from the court ruling.
In response to another comment. See in context »