I thought some of you may be interested in these statistics from the Innocence Project, which has now had some 100 death sentences overturned based upon post-conviction evidence. According to their study of the first 70 cases reversed:
By Roger Roots
The late great Learned Hand was one of the most knowledgeable judges to ever serve on the American bench. He served as chief judge of the U.S. Second Circuit Court of Appeals and composed more than 2,000 legal opinions. No one could know better than Judge Hand how accurate the American legal system was as a mechanism for discovering criminal guilt. In 1923, Hand wrote an opinion in a New York criminal case indicating that American court procedures had for too long been “haunted by the ghost of the innocent man convicted.” “It is an unreal dream,” concluded Hand. “What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime.”
Judge Hand was not alone in this assessment. Experts agree that the rate of wrongful conviction in American courts is exceedingly low. Huff, Rattner, and Sagarin, authors of the 1995 book Convicted but Innocent, spent more than a decade studying the persistence of wrongful convictions, gathering evidence and assessments from police administrators, sheriffs, prosecutors, public defenders, and judges. The three scholars concluded that about 0.5 percent of persons convicted of felonies are estimated to be innocent of the crimes convicted of. This rate amounted to 10,000 innocents per year in 1995 when there were only one million people behind bars (today there are over two million). Convicted But Innocent shocked the criminal justice system and brought complaints from official experts that the three academics had drastically overstated the rate of wrongful conviction.
But DNA has blown the lid off of even the extravagant assessment of Huff, Rattner, and Sagarin. DNA analysis has suggested that all of the experts-wise judges like Learned Hand, dedicated police officers, liberal academics, and hard-working lawyers on both sides of the bar-have all underestimated the rate of wrongful conviction. Last year’s best-seller Actual Innocence by Barry Scheck, Peter Neufeld and Jim Dwyer suggested the true rate of wrongful convictions may be closer to ten percent than to one-half of one percent. DNA tests used before trial have exonerated at least 5000 prime suspects out of the first 18,000 DNA suspect samples at the FBI and other crime labs-suggesting a pre-trial error rate of more than 25 percent. Since 1977, some 553 people have been executed in the United States while another eighty death row inmates have been released after they were found innocent. For every seven executed, one innocent person is freed-an “error rate” of more than twelve (12) percent. In the State of Illinois, 12 people have been executed since 1977 while 13 have been released after proving their innocence-an error rate of 52 percent. Last year the Governor of Illinois-who supports the death penalty-finally called a moratorium on the use of the death penalty until all of the quirks in the process are ironed out.
But the quirks in the death penalty process are, if anything,
less pronounced than the quirks in the criminal justice system
generally. The true error rate for the criminal justice system as a
whole may be much higher than the twelve percent national error
rate in death penalty cases. DNA analysis is only available where a
DNA specimen exists, such as in rape cases or bloody murder cases.
For the vast majority of innocent criminal defendants, there is no
hope of exoneration through DNA analysis.
Even if the true error rate of America’s criminal justice system is only ten percent, this translates to 200,000 innocent people presently behind bars in the United States. It means that there are more innocent prisoners in America than there are prisoners of all kinds in France, Germany and Britain combined. It means that the present number of innocent American prisoners is actually higher than the entire American prison population back in 1970.
Moreover, even the guilty are often wrongfully convicted. Too many convictions are owed more to the zeal of the justice system than to appropriate evidence. Improperly obtained evidence, coerced or inaccurately taken confessions, and exaggerated testimony have become common elements in the criminal courts. It is the totally “clean” prosecution, rather than, as Learned Hand suggested, the totally innocent person convicted, that is too often the anomaly in the criminal justice system.
Those who think that improper tactics are excusable in the quest to convict the guilty have contributed to the conviction and incarceration of large numbers of the truly innocent. The revelations owed to DNA analysis should serve as a wake up call for a system in dire need of overhaul. Blackstone’s ancient reminder that it is better to let ten guilty men go free than to convict a single innocent person should operate as the highest operating principle of American justice. All of us-jurors, police officers, lawyers, judges, public officials and scholars-should renew our commitment to the idea that wherever a shadow of a doubt exists that a person might be innocent, all errors should be on the side of caution.
Providence, Rhode Island