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March 25, 2008

Who is trying to count sentencing mistakes?

Writing in the New York Times, Adam Liptak's "Sidebar" column today is headlined "Consensus on Counting the Innocent: We Can't."  Here are snippets:

A couple of years ago, Justice Antonin Scalia, concurring in a Supreme Court death penalty decision, took stock of the American criminal justice system and pronounced himself satisfied. The rate at which innocent people are convicted of felonies is, he said, less than three-hundredths of 1 percent — .027 percent, to be exact. That rate, he said, is acceptable. “One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly,” he wrote. “That is a truism, not a revelation.”

But there is reason to question Justice Scalia’s math.  He had, citing the methodology of an Oregon prosecutor, divided an estimate of the number of exonerated prisoners, almost all of them in murder and rape cases, by the total of all felony convictions. “By this logic,” Samuel R. Gross, a law professor at the University of Michigan, wrote in a response to be published in this year’s Annual Review of Law and Social Science, “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.”

Joshua Marquis, the Oregon prosecutor cited by Justice Scalia, granted the logic of Professor Gross’s critique but not his conclusion. “He correctly points out,” Mr. Marquis, the district attorney in Clatsop County, Ore., said of Professor Gross, “that rape and murders are only a small percentage of all crimes, but then has absolutely no real data to suggest there are epidemic false convictions in, say, burglary cases.”

What the debate demonstrates is that we know almost nothing about the number of innocent people in prison. That is because any effort to estimate it involves extrapolation from just two numbers, neither one satisfactory....  We are left with an uneasy agreement between Professor Gross and Mr. Marquis on at least one point.  “Once we move beyond murder and rape cases,” Professor Gross wrote, “we know very little about any aspect of false conviction.” 

But a few general lessons can be drawn nonetheless. Black men are more likely to be falsely convicted of rape than are white men, particularly if the victim is white.  Juveniles are more likely to confess falsely to murder.  Exonerated defendants are less likely to have serious criminal records.  People who maintain their innocence are more likely to be innocent. The longer it takes to solve a crime, the more likely the defendant is not guilty.

Regular readers will not be surprised to hear that, though I am sympathetic to concerns about the rate and nature of wrongful convictions, I am even more concerned about the rate and nature of wrongful sentencing.  Unfortunately, I do not think anyone is trying to track or even understand the problem of wrongful sentences.

March 25, 2008 at 10:19 AM | Permalink


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what in the world is a wrongful sentence? and how could it be measured?

if by "wrongful" sentence, you simply mean an unduly harsh/long sentence, good luck on creating a metric for that. many people (sentencing commissioners, or the judges imposing those sentences) obviously do *not* see such sentences as "wrongful."

Posted by: Reader | Mar 25, 2008 11:03:53 AM

And, since guilty and punishment are purely legal concepts, so are wrongful findings of "guilt" as well. The sooner we realize that our system of laws is a series of political judgments (for good and for ill), the happier we will be.

Posted by: S.cotus | Mar 25, 2008 11:32:46 AM

And what about the track record of the criminals? Career criminals getting falsely convicted for lesser is not something we ought to worry about that much. Obviously, we'd like to correct every error, and errors, when discovered absolutely need to be rectified, but the Kirk Bloodworths of the world deserve a lot more of our sympathy.

Posted by: federalist | Mar 25, 2008 1:06:55 PM

Federalist, This is why I agreed with you when you conceded that you were not a lawyer.

Yes. It is true. There are many crimes that go unpunished. Heck, the other day at the yacht club, I saw some people drinking underage. Nothing was done. Last summer at an outdoor classical music event I saw some partners drinking from bottles of wine. Despite clearly stated open container laws (which in that jurisdiction are jailable offenses) not so much as a citation was issued.

But, our system of laws does not even pretend to enforce all laws. If it did, a “selective prosecution” argument would normally succeed. Instead, our constitutional scheme focuses on 1) creating valid tribunals; 2) providing defendants (not society as a whole) with enforceable rights. I am sorry you don’t like it.

But, if you didn’t like the above paragraphs, I will tell you why it gets worse. In many forums Prosecutors will routinely and knowingly plea bargain sentences of putative career offenders (or their state-law equivalent) to well-below the statutory minimum for career offenders. In some jurisdictions, knowing the collateral federal effects of some state-law sentences, some judges will deliberately take guilty pleas that could easily be easily set aside (e.g. without the defendant being present) simply to allow the defendant to receive some punishment, but to also assure him that any future federal prosecutions won’t be as a “career offender.” Somehow, state prosecutors, liking the idea of rehabilitating one defendant (without giving the feds a freebee) are willing to go along with this.

In some cases, some prosecutors have forgotten to file the appropriate notices regarding prior convictions. Is this a terrible injustice? Or, is it just holding the government to its burdens when it seeks to put someone in jail?

So, I am sorry to say that: 1) there will be people sentenced below what, in your perfect world, they should have gotten (sorry); 2) everyone knows this; and 3) for plea bargaining to work there must be actual bargaining and creative thinking.

Posted by: S.cotus | Mar 25, 2008 1:55:09 PM

My personal experience, based on 31 years of criiminal defense work, is that there abour seven convictions, after trial, of innocent people, for every guilty individual who is acquitted. Of course, there are other innocent people who enter pleas and take a conviction, in order to avoid the danger of worse punishment after being wrongly convicted at trial.

Posted by: Greg Jones | Mar 25, 2008 3:32:22 PM

Whats worse? Having an 'acceptable' degree of wrongly convicted people or a system that is so one sided innocent people take pleas fearful of being railroaded even worse?

The prosecution already has many tools avaliable almost solely to them in obtaining a conviction but what bothers me worse that in Des Moines the public defender office has an unusually wierd setup (i dont know if this is the same in other cities). There are two types of public defenders one set handles people that just do plea deals other set handles trials. If you go to trial they hand it over to the trial set but if you walk into pre trial conference (i think thats the term) with a 'plea deal' lawyer, the prosecution already knows where this conference is heading.

If you are a poor person in this country is there anything about our court system that is in your favor?

Posted by: Mark | Mar 25, 2008 5:22:37 PM

Scalia is probably right: no system is fullproof and no human is incapable of making an error. This, of course, leads directly to the conclusion that we should outlaw capital punishment. A .027 percent chance of imprisoning someone might (to Scalia) be acceptable, but a similar percent chance of killing someone should be unacceptable, especially where the alternative is a 0% chance of killing someone.

Posted by: Anon | Mar 25, 2008 8:31:57 PM

Scalia's number used the wrong denominator, since as Liptak notes people are only counting DNA and death row exonerations. He should have compared his numerator to sexual assault cases that contained testable DNA evidence, if he wanted an accurate percentage.

When you start to add in innocent people convicted and exonerated in the drug war, the number goes up considerably. In Texas, just three drug war cases - Tulia, Hearne, and the Dallas fake drug scandal - accounted for more exonerations and pardons since 2001 than all the DNA-based cases that were overturned. And that's just the tip of the iceberg. Nobody's counting this stuff.

Posted by: Gritsforbreakfast | Mar 26, 2008 7:18:48 AM

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