A perspective on the system as a whole

There are some reasonable points in the article below by Judge Hoffman (a Colorado district court judge and an adjunct professor of law at the University of Colorado). Judge Hoffman rightly highlights the great role of plea bargaining but is far too silent on what a totally corrupt process it is. If anything is designed to get innocent people convicted that is. It may be a bureaucratic necessity but it is a travesty of justice. He also fails to mention suborned evidence (the totally corrupt offer of reduced sentencing in return for incriminating others) and the amazing acceptance of testimony from jailhouse snitches. Given those vast flaws in the system, I don't think any quantification of the accuracy of the system overall can be made

Criminal defendants in the United States are sometimes wrongfully convicted. If that's news to you, you don't know much about human fallibility. You must also have somehow managed to avoid the increasingly shrill polemics issuing, daily it seems, from our nation's law schools and their "innocence projects," which have spent the last 20 years trying to paint a picture of our criminal justice system so dismal that a rightful conviction seems the exception and not the rule.

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.

But what is the real wrongful conviction rate? Innocence projects, and the liturgies that have grown up around them, are strangely silent when it comes to that question. And of course in imperfect complex systems, it is the error rate that matters. That means we must look not only at the number of wrongfully convicted defendants, but also at the number of rightly convicted ones. And there lies the empirical challenge.

Before the advent of DNA testing, there were only a few narrow circumstances in which we could confidently assess a defendant's guilt by any method other than the trial itself. In the era before the corpus delicti rule was vigorously enforced, "victims" of "murder" occasionally resurfaced very much alive. Fingerprints and some other kinds of pre-DNA forensic evidence discovered after trial could sometimes do the trick. Later confessions by the "real" criminal could also prove convictions wrongful, though, of course, there is the problem of false confessions.

Perhaps because of these definitional challenges, there has been very little in the way of comprehensive study of wrongful conviction rates. But that hasn't stopped the mythmakers. One of the earliest and most oft-cited works on wrongful convictions was a 1987 study done by Hugo Bedau and Michael Radelet, claiming that 23 of the 350 capital defendants whose cases they examined (including Sacco and Vanzetti) were executed despite their factual innocence. Yet the method by which Mr. Bedau (a philosopher) and Mr. Radelet (a sociologist) determined whether the executed defendants were actually innocent was to reconstruct from the trial record, and contemporaneous newspaper reports, a one-sided narrative from which some doubt about factual guilt might plausibly be argued.

Scholars immediately criticized this methodology, and challenged Messrs. Bedau and Radelet to come up with a single case of a demonstrably innocent person executed in America in the modern era. Messrs. Bedau and Radelet have not only been unable to do so, one of them has recently admitted that their label "innocent" was really just a way of saying there were errors in the trial, that guilt seemed to them to be a "close call," and that some of those close calls must surely, as a statistical matter, have involved some factually innocent people.

The mythmakers also directly conflate trial error rates with wrongful conviction rates. Studies showing astonishingly high error rates in capital trials have very little to do with the question of the rate at which innocent people are being convicted. I can't remember a single trial over which I have presided -- including dozens of homicides -- in which, looking back, I didn't make at least one error in ruling on objections. It is a giant leap from an erroneous trial ruling to reversible error, and another giant leap from reversible error to actual innocence.

Much of the empirical confusion about wrongful conviction rates has been driven by histrionics over the death penalty. To a large and unfortunate extent, the debate about wrongful convictions in a capital context has become a proxy for arguments in favor and against the death penalty. Lost in the cross fire is any reliable data about the actual wrongful conviction rate.

But the innocence data can be mined for some approximations. And those approximations suggest that the actual rate of wrongful convictions in the United States is vanishingly small.

In the first place, almost all criminal defendants plead guilty. The national plea bargaining rate is around 95%. That means that even if juries get it right only 80% of the time (an assumption at which most sensible scholars would cringe), the overall post-trial wrongful conviction rate would still be only around 1%.

But the real wrongful conviction rate is almost certainly lower, and significantly so. Earlier this week the innocence project at Cardozo School of Law issued a press release celebrating the 200th person exonerated by DNA testing. But in the 20 years innocence projects have been operating, there were roughly two million criminal trials in the U.S. Assuming as many as 25% of those trials resulted in acquittals (and ignoring, as the innocence merchants are wont to do, the problem of wrongful acquittals), the wrongful post-trial conviction rate is only 0.013%. Since only 5% of cases are tried, that would place the overall wrongful conviction rate at around 0.00065%.

Of course, this is just a lower bound estimate, based on several admittedly questionable assumptions, including that the innocence-project data is representative, and that no innocent people plead guilty. But even if this estimate is an order of magnitude or two low, it is still considerably less than the mythmakers would have us believe.

Even cases that make it to trial are rarely about factual innocence -- that is, whether the defendant actually committed the acts with which he is charged. Yes, there are the occasional "whodunits" -- I even had a homicide whodunit earlier this year -- and even categories of cases in which factual guilt is more likely to be a legitimately contested issue, such as sex assaults. But those cases are very much the exception. The vast majority of criminal trials in America are not about factual guilt or innocence, they are about the defendant's state of mind at the time of the crime, and therefore about the level of offense of which the defendant will be convicted.

Exaggerations about the unreliability of the criminal justice system are not just matters of scholastic impurity and pedagogical extremism; they threaten to become self-fulfilling. In a system as dependent on plea bargaining as ours, a widespread belief that the system is hopelessly unreliable will only encourage innocent defendants to plead guilty to lesser offenses. It also leaves many jurors, who expect "whodunits," unprepared for the real work of the typical criminal jury -- to decide the defendant's level of culpability -- and therefore unduly resistant to defenses based on lack of culpability.

Of course, the work of innocence projects is incredibly important and should be celebrated, even if the projects had identified just one wrongfully convicted defendant, let alone hundreds. That's because trials should be about truth, and errors in truth detection -- whether convicting the innocent or acquitting the guilty -- should concern us all. Innocence projects may also have significant things to teach us about discrete points in the criminal justice system that are particularly prone to error (such as coerced confessions and cross-racial identification).

But it is a mistake for them to stretch their results beyond all statistical sense. All defendants are entitled at trial to the scrupulous presumption of their innocence. They are not entitled to the post-conviction presumption that the criminal justice system is about as reliable as tossing a coin.


Report here



(And don't forget your ration of Wicked Thoughts for today)