Weeding Out The Innocents
The first innocent American defendant to be exonerated by DNA evidence was Gary Dotson of Chicago. Before his conviction was overturned on Aug. 14, 1989, he’d spent 10 years in prison and on parole. This year, on April 23, Jerry Miller obtained the 200th DNA exoneration, also in Chicago. He had served 25 years for a rape he did not commit.
Two hundred innocent prisoners exonerated by DNA - plus more than 200 other exonerations that did not involve DNA. That sounds like a lot. But over 18 years in a criminal justice system that sends hundreds of thousands to prison each year? How frequent are wrongful convictions?
The truth is, we don’t know. But that hasn’t stopped prominent members of the legal profession from staking out a position.
More than a year ago, prominent Oregon prosecutor Joshua Marquis, commenting on my research on exonerations, wrote in the New York Times that the rate of erroneous convictions could be no higher than .027%. Last June, Justice Antonin Scalia endorsed that calculation in a concurring opinion in a Supreme Court case. This April, after the 200th exoneration, Colorado District Judge Morris B. Hoffman wrote in the Wall Street Journal that false convictions occur in fewer than .065% of criminal cases. Whatever the number, the message is the same: Not to worry, we get it right more than 99.9% of the time.
These reassuring words are nonsense.
Here’s how Hoffman and Marquis arrive at their numbers. Start with the number of known, proven exonerations (for Hoffman, the 200 DNA exonerations so far), then multiply that by 10 “to be safe” (Marquis’ formula). Take that product, divide it by an estimate of the millions of all criminal convictions over time, and you end up with something less than one-tenth of 1%.
This makes no sense. Imagine that a car company gets reports that 65 of its 2007 sedans have faulty steering columns, which sometimes lock up. What if the company said: “That’s no big deal. We have 10 million cars on the road, so that’s less than one-thousandth of 1%.”
But that’s ridiculous. The total number of defects could be 10 or 100 or 1,000 or 10,000 times greater than the first batch that came to light. Unless we investigate systematically, we just don’t know - not for steering columns and not for criminal convictions.
Further, the car company has divided by the number of all cars in service, when it should use the number of 2007 sedans only. Marquis and Hoffman make this mistake too. Hoffman, for example, divides the 200 DNA exonerations to date by his estimate of all criminal convictions - including check kiting, tax evasion and car theft. But DNA testing requires biological evidence; it has only been useful in a fraction of rape convictions and a scattering of murder cases (if the killer bled). Rape and murder account for fewer than 2% of felony convictions and a much smaller percentage of all convictions.
As it happens, we’re just beginning to learn something real about the rate of false convictions. The Virginia Department of Forensic Science recently found a large group of closed rape files with untested DNA, which will make possible the first systematic study of false convictions. So far, tests on a small preliminary sample are troubling: two previously unknown wrongful convictions out of 29, or an error rate of 7%.
We can also learn from death sentences, which are reviewed much more carefully than other criminal convictions, so more errors are caught. Of the 3,795 defendants sentenced to death from 1973 through 1989, 86 were freed because of DNA or other new evidence of innocence. That’s 2.3%. Of course, some of those freed may be guilty, while others still on death row are no doubt innocent. So last year, Michael Risinger, a professor at Seton Hall Law School, did a study of death row DNA exonerations only. His results? Among defendants sentenced to death between 1982 and 1989 for murders involving rape, at least 3.3% were innocent.
The good news is that the great majority of convicted defendants in the United States are guilty; the bad news is that a substantial number are not. Is an error rate of 2% or 3% or 5% high or low? That depends on your point of view and your purpose.
If 1% of commercial airliners crashed on takeoff, we’d shut down every airline in the country. That would be nearly 300 crashes a day. If as few as 1% of criminal convictions are erroneous, right now there are more than 20,000 innocent defendants behind bars.
Correcting false convictions is much harder than recalling automobiles, but we have to try. We’ll never save the innocent defendants who are already in prison - or keep others from suffering their fate - if we just wish the problem away.
Samuel R. Gross is a law professor at the University of Michigan.
© 2007 The Los Angeles Times
Figures lie and liars figure. I’ll bet prosecutors, law enforcement personnel, and judges would be a lot more careful about crime and punishment were they forced to serve the sentences they wrongly imposed on innocents. Alternative plan: such people are exiled for life to an island so as to not contaminate proper society. Hmmm.
the judicial system in this country is one more major sign of its fascism. the DNA issue is just a tip of the iceberg. you really want see how f’d up this country is, start looking at our “justice” system.
Our judicial system is as racist, sexist, and homophobic as our society, so we will always be having innocent people going to prison.
Hoa binh
Since I didn’t carefully read the film’s closing credits I don’t know if Samuel Gross consulted on or played any role in the most excellent film aired on Court Television, entitled, THE EXONERATED. Wonderful actors like Brian Dennehy and Susan Sarandon were among some who enacted the experience and fate of persons wrongfully accused and left on death row until some form of clemency exonerated them. One man was railroaded into a sentence and whereas the actual killer was a homosexual, he was not. The rape this poor man encountered in prison was mortifying; and yet a woman from Amnesty International who went to research his case ended up falling in love with him. They are now married. If a man can overcome the hatred he must have felt for the agony of over a decade in a men’s hell hole, and still be able to love, then you know there IS such a thing as miracles.
I also hope the DNA evidence helps to convict serial murderers and rapists! Years ago I felt safe camping and traveling alone, but for women in America today, the FACT of rape is a real deterrent to our freedoms.
And of course, the death penalty shouldn’t be outlawed just because of the innocent who are being imprisoned or put to death.
The death penalty should be outlawed because it is wrong.
It is wrong for a civilized society to put a person coldheartedly to death, no matter how bad the crime. Not for the benefit of the prisoner, but for the benefit of the rest of society starting with the family of the prisoner, to the guards who held the prisoner to be killed, to the the jury, judge, lawyers who argued for his death, and to just common humanity. We don’t need the negative weight on our conscience because of another dead human being.
Even if we as an individual feel that a person should be put to death because of something that they did to our family, it doesn’t give civilized society the right to put someone to death.
And I think it is natural (and okay) for a person who had a family member killed to want the murderer put to death. But in the long run, society would probably be nicer to each other if they understood that life and justice was valued by society and the death penalty abolished.
And maybe some members of the victim’s family, once they understood how much more heartbreak and misery the prisoner’s death would cause, would feel better about about not being responsible for another death.
peace
AG
namvet67,
I hope that by “sexist,” you mean that the judicial system has a built-in prejudice against men. This seems to be inarguably true.
Kivals: On sexism: Women are groped by male guards and often observed at vulnerable times that they should be allotted privacy. Many are forced into sexual situations to get routine things like the chance to call family. In any hierarchy of power, those at the bottom use what they can to negotiate for their survival needs. Prison IS a hierarchy. Who guards the guards? I think I heard it on NPR an excellent scathing report on RAPE of both genders in prison situations and that rape is routinely understood to be part of prison “culture.” Here again, evidence of the land of the free, home of the brave and prisons under compassionate conservatism (their exponential growth rate lately!)