That's the title of Radley Balko's post from last week at his Reason.com blog. It's subtitled, "America's 250th DNA exoneration raises questions about how often we send the wrong person to prison." Thanks to the loyal reader who forwarded. An extended excerpt:
Freddie Peacock of Rochester, New York, was convicted of rape in 1976. Last week he became the 250th person to be exonerated by DNA testing since 1989. According to a new report by the Innocence Project, those 250 prisoners served 3,160 years between them; 17 spent time on death row. Remarkably, 67 percent of them were convicted after 2000—a decade after the onset of modern DNA testing. The glaring question here is, How many more are there?
Calculating the percentage of innocents now in prison is a tricky and controversial process. The numerator itself is difficult enough to figure out. The certainty of DNA testing means we can be positive the 250 cases listed in the Innocence Project report didn't commit the crimes for which they were convicted, and that number also continues to rise. But there are hundreds of other cases in which convictions have been overturned due to a lack of evidence, recantation of eyewitness testimony, or police or prosecutorial misconduct, but for which there was no DNA evidence to establish definitive guilt or innocence. Those were wrongful convictions in that there wasn't sufficient evidence to establish reasonable doubt, but we can't be sure all the accused were factually innocent.
Most prosecutors fight requests for post-conviction DNA testing. That means the discovery of wrongful convictions is limited by the time and resources available to the Innocence Project and similar legal aid organizations to fight for a test in court. It's notable that in one of the few jurisdictions where the district attorney is actively seeking out wrongful convictions—Dallas County, Texas—the county by itself has seen more exonerations than all but a handful of individual states. If prosecutors in other jurisdictions were to follow Dallas D.A. Craig Watkins' lead, that 250 figure would be significantly higher.
If the numerator is tough to figure, the denominator is even more controversial. One of the more farcical attempts at writing off the growing number of DNA exonerations came in a concurring opinion that Supreme Court Justice Antonin Scalia wrote in the 2005 case Kansas v. Marsh. Scalia began by dismissing the idea that an innocent person may have been executed in America, explaining that if such a tragedy had occurred, "we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby."
Scalia has probably since become acquainted with the name Cameron Todd Willingham, the Texas man executed in 2004 who was likely innocent. But the justice's pique also betrays an unfamiliarity with how death penalty opposition organizations work. While Scalia is right that proof of an executed innocent would be good rhetorical fodder for death penalty abolitionists, legal aid groups aren't about to waste their limited resources hunting down mistaken executions when there are living, breathing innocents still to be discovered. Moreover, in many jurisdictions, prosecutors destroy the case files after an execution, making any post-execution investigation rather difficult. That we don't know for certain about more executed innocents doesn't mean they haven't happened.
Yesterday, Ed Brayton commented in "How Many Innocent People Are In Prison?" at ScienceBlogs.
Hear, hear. A few ideas for fixing this:
1. Establish innocence commissions in every state whose sole purpose is to review the record in every conviction and look for cases where the testimony and the evidence is conflicting, where details were left out before the jury and so forth.
2. Stop electing prosecutors -- and judges. It is the need to run for reelection that forces prosecutors and judges to be concerned about their conviction rate rather than their rate of being right.
3. Overturn last year's appalling Supreme Court decision and explicitly grant a right to access to DNA evidence for all defendants and set up a lab to provide such testing at public expense. Congress can do this without a problem (the court ruled that there is no constitutional right to such evidence, but Congress has the authority to establish a statutory right to it).
More on the Innocence Project's December report, here; related posts are in the exoneration and innocence indexes.
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