The Innocence Myth?

The Wall Street Journal just published an editorial (of which they were generous enough to provide a free preview) by the Honorable Morris B. Hoffman, a Colorado District Judge, in which Judge Hoffman audaciously labels "innocence" a myth -- in the specific context of the great work of organizations like the Innocence Project, and others working to undo wrongful convictions and reduce their future occurrence.

The author makes a veiled reference to "one of those innocence projects," to kick things off:

The director of one of those innocence projects said in a 2002 magazine interview that "we as a nation" would rather have the criminal justice system convict 10 innocent people than let one guilty person go free, inverting the famous Blackstone Ratio. Today, that project's Web site lists as one of its missions the duty to educate the public about the "prevalence" of wrongful convictions.

I can't say what the nation thinks, but one doesn't have to be in this business for long to begin to believe it. Prosecutors and police forces fight tooth and nail against reforms that are carefully tailored to employ scientific principles proven to reduce the likelihood that innocent people will end up in prison, and policymakers in many cases end up siding with them.

Maybe this is the crux of the issue. Ben Franklin said in 1780: "That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a maxim that has been long and generally approved" (a more zealous take on what is known as the "Blackstone ratio"). A century later, Feliks Dzerzhinksy (founder of the Soviet secret police) stood Ben Franklin's "long approved" maxim on its head, proclaiming it "better to execute ten innocent men than to leave one guilty man alive." Maybe what we are observing is two conflicting views of the world -- and the value of human liberty -- fundamentally at odds.

When you can't convince law enforcement agencies to implement simple measures like double-blind lineup procedures designed to minimize the effects of their suspicion on witness choices, it starts to look like the Feliks Dzerzhinskys of the world are winning the day. That's not to say that progress isn't being made, but there are many rivers left to cross.

But back to this WSJ article. Hoffman goes on to inquire about the actual rate of innocence. Maybe, after all, these "innocence advocates" and the "liturgies that have grown up around them" (!) are worshipping a false idol, the WSJ author/judge implies. Apparently out to get these pesky innocence proselytizers, who "are strangely silent when it comes to that question" of the actual innocence rate, Hoffman tries to redirect the dialogue to a question of the error rate, which is what really matters "in imperfect complex systems." Hoffman appears to imply that if the "error rate" -- that is, the rate at which innocent people are incarcerated and in some cases, possibly executed -- is within an acceptable range, then the innocence projects -- which he belittles as both "mythmakers" and "innocence merchants" -- are in a tizzy over nothing.

But this brings us back to the Blackstone ratio, and a fundamental clash of worldviews that I think is at the heart of this disagreement. 200 innocent people incarcerated for a combined total of 2,475 years in prison is not an "acceptable error rate," no matter the ratio of wrongfully convicted to "rightfully" convicted. And obviously the work of the Cardozo Innocence Project, and the battalions of others committed to the same cause, do not represent the entirety of the problem. Other innocents remain in prison, and new innocents continue to be put in prison.

The "mythmakers" are silent on the question of the "actual innocence rate" because the problem of innocent people being deprived of their liberty is not a statistical problem; it is a moral problem. This is exactly what Ben Franklin meant when he said that "it is better 100 guilty Persons should escape than that one innocent Person should suffer": human liberty is not reducible to a mundane statistical formulation. Innocence advocates are silent on the question of the actual innocence rate not because they fear the answer, but because it is fundamentally the wrong question.