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July 23, 2007

Learning from exonerations

Thanks to this post at ODPI, I see that Adam Liptak has this thoughtful new piece in the New York Times, entitled "Study of Wrongful Convictions Raises Questions Beyond DNA."  The piece discusses two new forthcoming law review articles that examine clear-cut DNA exoneration cases.  Here are excerpts from the NYT piece: 

Brandon L. Garrett, a law professor at the University of Virginia, has, for the first time, systematically examined the 200 cases, in which innocent people served an average of 12 years in prison. In each case, of course, the evidence used to convict them was at least flawed and often false — yet juries, trial judges and appellate courts failed to notice....

The 200 cases examined in the study are a distinctive subset of criminal cases.  More than 90 percent of those exonerated by DNA were convicted of rape, or of both rape and murder, rape being the classic crime in which DNA can categorically prove innocence.   For other crimes, there is often no biological evidence or, if there is, it can give only circumstantial hints about guilt or innocence....  Professor Garrett’s study strongly suggests, then, that there are thousands of people serving long sentences for crimes they did not commit but who have no hope that DNA can clear them....

Professor Garrett also found that exonerated convicts were more apt to be members of minority groups than was the prison population generally. For instance, 73 percent of the convicts cleared of rape charges were black or Hispanic, compared with 37 percent of all rape convicts.

The courts performed miserably in ferreting out the innocent.... Only 20 of the 200 even appealed on the ground that they were innocent; none of those claims were granted.  Perhaps the most troubling finding in Professor Garrett’s study was how reluctant the criminal justice system was to allow DNA testing in the first place.  Prosecutors often opposed it, and 16 courts initially denied requests for testing.  Yet DNA evidence can do more than free the innocent. In many cases, it also identified the person who actually committed the crime....

The era of DNA exonerations should be a finite one. These days, DNA testing is common on the front end of prosecutions, meaning that in a few years, the window that the 200 exonerations has opened on the justice system will close. We should look carefully through that window while we can.

Returning to the main theme of this blog, I think sentencing decision-makers and reformers have much to learn from exonerations.  It is clear that the criminal justice system consistently make particularly types of mistakes when assessing guilt and innocence; sentencing decision-makers and reformers should be noting how the system consistently make particularly types of mistakes when assessing sentence lengths.

July 23, 2007 at 01:50 PM | Permalink


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Perhaps, given the finite amount of resources the criminal justice system has, people interested in exonerating the innocent could decry the nonsense that surrounded the John Byrd case in Ohio and the ongoing nonsense in the Kevin Cooper case. Such scorched-earth tactics (and judges willing to tolerate them) incentivize the state to defend to the hilt each and every conviction, to say nothing of the complete waste of everyone's time--does anyone, other than a few moonbats, think Kevin Cooper innocent. It is no answer to trot out cliches that the prosecutors should seek only justice, as a false negative (i.e., a person freed on the basis of "innocence") is itself a miscarriage of justice.

Posted by: federalist | Jul 23, 2007 1:59:58 PM

From personal experience, my estimate is that seven innocent people are wrongly convicted for every guilty individual wrongly acquitted. Evidentiary rules and police practices about eyewitness identifications are a large part of the problem, along with the anything-goes approach to police interrogation techniques. At least where I practice, the "reasonable doubt" instruction has been so watered down as to be meaningless. State court judges, who must stand for re-election every few years, find no votes in making any rulings in favor of criminal defendants, but rulings against them are always a plus at election time.

I just recently read someone's theory that law isn't some eternal verity which reasonable members of our learned profession can discover most of the time, but it is, instead, politics. The tough-on-crime, law-and-order, types have controlled the legislatures, the debate, and the legal thinking, on crime for about the last 40 years, so the fact that many innocent people are imprisoned cannot come as a big surprise.

Posted by: Greg Jones | Jul 23, 2007 2:57:20 PM

"From personal experience, my estimate is that seven innocent people are wrongly convicted for every guilty individual wrongly acquitted."

If ever there was a dubious anecdote recited in favor of a legal argument, this is it.

Posted by: | Jul 23, 2007 3:07:47 PM

To "" (posting at 3:07:47):

Greg Jones was not making a legal argument. He was explicitly making a political argument.

More importantly, you call his opinion "a dubious anecdote." His opinion is not an anecdote. It's simply his opinion, based on his experience. In fact, he doesn't recount a single anecdote in his posting.

Now you (apparently) either have a different opinion, based on different experience, or you have data. But you don't show us either. You show mere snideness. Without even knowing him, or you, I'll take Greg Jones' explicit, political opinion over your weak snideness any day.

Finally, data regarding wrongful convictions and wrongful acquittals is extraordinarily difficult to come by; at a meaningful systemic level, it is IMPOSSIBLE to come by. So, in examining policy choices in the criminal-justice area, we must mainly rely upon personal opinion, based on personal experience. Greg Jones' approach is vital when discussing subjects such as this. Snide attacks, however, are barely worth mentioning.


Posted by: Mark | Jul 23, 2007 4:11:45 PM

federalist, your broken record is broken. No one defends the murderers you are in the habit of singing about and you sound like the blaring music outside the Branch Davidian in Waco just before it burned down.

Criminal law is politics.

When Newt Gingrich took over the House, he declared the dawn of a new progressive era. Jack Kemp offered the word "progressive" to frightened liberals as if it meant "I come in peace."

What does this mean? The linked article explains it some but is only a hint. Newt is a historian and he knows well the deeper nuances of his comment.

For the skeptic and perhaps the cynical, it goes deeper than even Newt may realize because it becomes a runaway tank. Often an effort to over-control is chaos. As the New Republic article suggests, a blind faith in progress is always at the expense of something else.

There are books that powerfully shed light on the politics of law today. History repeats itself. War Against the Weak is probably the best introduction and In the Name of Eugenics runs a close second. A more scholarly account focusing on the legal point of view is Creating Born Criminals, (though excellent, without the benefit of one of the two books above Rafter's book seems almost liberally defensive in the same way it can appear I'm really trying to protect the murderers federalist rants about. Nothing could be further from the truth).

The common thread throughout is the concept of progress and the dangers of hubris. A small cabal of mostly men managed to nearly take control of the United States through political manipulation of criminal and moral laws, all in the name of perfecting mankind for it's own good. The inspiration to Hitler and the dire consequences of Nazi Germany are clear, what is not so clear is how the Progressive Era led to Buck v. Bell, the closet we came to our own Holocaust.

I don't think any law student can understand law without this awareness.

Posted by: George | Jul 23, 2007 6:46:02 PM

Sorry to be a broken record, but there is a major problem.

The New York Times was and is the worst of the Nifong enablers. So they have no credibility on criminal justice issues. They will warp any story to support their political agenda. So we have no way of knowing if they fairly described the study or not.

Posted by: William Jockusch | Jul 23, 2007 7:02:51 PM

George, your comments are basically non-responsive. No one can deny that some pretty weak innocence claims have gotten some legs, and that phenomenon makes identification and release of innocent people behind bars less of a cooperative process.

By the way, I am not a big fan of assaults like MOVE or Waco.

Posted by: federalist | Jul 23, 2007 7:34:42 PM

It was responsive to Greg Jones' post. The point is, no sacrifice is too great when Superman is saving the world from itself. Then the Constitution becomes a "damn piece of paper" that gets in the way and so what if a few innocents get caught up in the mix. Better some innocents are imprisoned or executed than one guilty person go free.

Posted by: George | Jul 23, 2007 7:56:39 PM

George, plenty of people defend Kevin Cooper, Mumia Abu-Jamal.

Posted by: federalist | Jul 23, 2007 8:29:23 PM

They likely think they are innocent. Maybe they are, I really don't know.

Room for error in evidence vaults
In some evidence rooms, chaos and disorganization make searches futile. Others are purged of valuable DNA samples, leaving cases unsolvable.

Authorities across the country have lost, mishandled or destroyed tens of thousands of DNA samples since genetic fingerprinting revolutionized crime solving 20 years ago.

Evidence from cold cases goes misplaced across Colorado.

Delicate traces of human biology sit stuffed into pizza and fried-chicken boxes in rat-infested New Orleans evidence vaults.

And specimens are dumped by the truckload in Los Angeles, Houston and New York - sometimes soon after high-profile exonerations.

In a country whose prime-time TV lineup glorifies DNA forensics, many real-life evidence vaults are underfunded and mismanaged, struggling to keep up with technological advances and lagging behind most corner groceries.

Posted by: George | Jul 23, 2007 8:41:18 PM

Mr. Jones, Can you post (or email me on my blog for posting) a "reasonable doubt" instruction that you say has been watered down?

Posted by: S.cotus | Jul 24, 2007 12:49:00 PM

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