Stages of Denial: The Numbers Are On Our Side Too

As Ben's post shows, many in the criminal justice process remain in the denial stage with respect to wrongful convictions. Before DNA, those same people repeatedly would say, with confidence, that innocent people were NEVER convicted in our criminal justice system. In the pre-DNA era, they disdainfully dismissed works like the Radelet study -- a pre-DNA study that concluded that 23 innocent capital defendants had been executed in the past 85 years -- pointing to its supposed flaws such as its reliance on "one-sided" materials like newspaper articles.

Of course, any pre-DNA attempt to demonstrate innocence, particularly post-humously and often years after-the-fact, would be subject to criticism by those who simply wanted to prolong the debate. Before DNA, it was simply impossible to definitively prove or disprove whether the criminal justice system wrongfully convicted people. If they wanted to, skeptics could continue to deny forever that such miscarriages of justice ever occurred, pointing to various "flaws" in exoneration cases that seemed to fairly definitively establish a miscarriage of justice.

Then the DNA exonerations came. And it was good. But not enough for the skeptics. At that point, it obviously became impossible for any rational person to deny that the criminal justice system sometimes convicted the wrong person. But when reformers then began to demand that the system take simple steps to fix what was now an identified and undeniable problem -- by, for example, reforming demonstrable problems in eyewitness identification procedures -- the skeptics began to question the scope of the problem, now demanding that reformers not only demonstrate the existence of the problem and its causes, but also its precise scope.

In other words, the skeptics once again wanted to prolong the debate by shifting it to even more unprovable territory. But even so, if it's numbers they want, it's numbers they'll get. Reformers are not afraid of the numbers because, while we'll never be able to establish precise error rates in the absence of some reliable measure of ground truth in every case, the numbers we do have themselves give rise to grave cause for alarm.

What numbers am I talking about? At the outset, its important to make clear that, for comparison purposes, we should look only at the number of criminal trials the system conducts, not the number of criminal convictions. Wrongful convictions are almost always convictions that occur following a trial, and thus the important question is how many of these trial verdicts are erroneous. Any attempt to include guilty plea convictions in the mix is simply an attempt to unfairly and artificially dilute the rate of wrongful convictions.

So the real question is how often factfinders convict people who claim at trial that they are innocent. The DNA exonerations themselves suggest that the scope of the problem is quite substantial. Why? Because testable DNA is available in only a small fraction of criminal cases -- the case must involve an item where the presence of absence of DNA is dispositive, which is not a common scenario -- and even in such cases, the physical evidence has often been destroyed before it could ever be tested. It's also not as though resources exist to routinely conduct testing in every eligible case or that there are lawyers who are available to take the results of those tests and to advocate for their clients on that basis. Given that the pool of cases in which DNA exonerations is possible is very small, the fact that the Innocence Project has managed to definitively exonerate 200 people from around the country suggests that the scope of the problem is substantial. Yes, it's "only" 200 people -- so far -- but its 200 people from the small group from which DNA testing could still be conducted and for which resources existed and trained, skilled lawyers were able to present the results to a court or the prosecutor.

The fact that so many innocent people have come to light under such circumstances tells us that we would inevitably get a lot more exonerations if we could establish ground truth in every case. Unfortunately, there is currently no way to do so.

But does that mean that we can only extrapolate an error rate from the exoneration numbers alone? No, we have at least two other numbers that provide us with some idea of the wrongful rate.

First, in Virginia, law enforcement authorities recently discovered a host of biological evidence from cases tried in the 1970's and 1980's. Before ordering DNA testing on all the evidence, Gov. Mark Warner ordered scientists to conduct DNA testing on a small, randomly selected percentage of sexual assault cases tried between 1973 and 1988 to determine if a more widespread DNA testing of the hundreds of convictions obtained during that time would be warranted. Of the 31 cases reviewed, two exonerations occurred. In other words, 6 percent of the randomly sampled cases tested resulted in exonerations. Predictably, both Virginia exonerations involved convictions that relied heavily on eyewitness testimony. See Michael D. Shear and Jamie Stockwell, DNA Tests Exonerate 2 Former Prisoners, WASH. POST., December 15, 2005, at A01.

Sure, its a small sample size. But its a random sample too, and if the criminal justice system has an error rate that is anything approaching 6% of the overall cases, the consequences are truly staggering. It would mean there are thousands of innocent folks sitting in jail around the country.

Second, we know that the FBI conducts DNA testing in a number of cases where criminal charges have already been filed (often based on eyewitness testimony), and that such testing often exculpates suspects. Unfortunately, the FBI has never made public how often DNA testing exonerates wrongly accused suspects. We have unofficially heard that the exoneration rate in such cases runs as high as 25%. Assuming that error rate is anywhere near accurate, and assuming that a similar error rate exists in cases where DNA can never rule out the suspect's guilt, such numbers would provide powerful (and quite frightening) evidence about the scope of the wrongful conviction problem in the criminal justice system.

On the question of numbers, as Ben points out, the precise ratio of wrongful convictions one is willing to tolerate ultimately boils down to a question of morality. Some agree with Ben Franklin and the Framers of the Constitution (as we do) about the importance of keeping the innocent out of jail, while others agree with the Former Chief of the Soviet Secret Police about the importance of locking up a lot innocent bystanders in an effort to get all the guilty culprits. Do you want to live in a free society that is strong enough to protect the innocent by providing meaningful civil rights and criminal justice protections for all its citizens, or do you want to live in a society that is so petrified by fear that it needlessly sacrifices the lives of innocent persons in order to obtain a "margin of safety" for those who are lucky enough not to be swept up in the net?


Whatever your moral position on this issue, its becoming clearer and clearer that our criminal justice system gets it wrong far too often. In the face of that reality, you can bury your head in the sand, or you can do something about it. We've chosen the latter course.