Tuesday, March 25, 2008

Wrongful Convictions: It's In The Numbers

Back in 2006, Supreme Court Justice Antonin Scalia concurred in Kansas v. Marsh that the acceptability of wrongful conviction and imprisonment, a rate he dubbed less than three-hundredths of 1 percent — .027 percent, was acceptable.

"One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly,” he wrote. “That is a truism, not a revelation.”
Except, as Adam Liptak notes in today's NYT, perhaps it's not.
There is reason to question Justice Scalia’s math. He had, citing the methodology of an Oregon prosecutor, divided an estimate of the number of exonerated prisoners, almost all of them in murder and rape cases, by the total of all felony convictions.

“By this logic,” Samuel R. Gross, a law professor at the University of Michigan, wrote in a response to be published in this year’s Annual Review of Law and Social Science, “we could estimate the proportion of baseball players who’ve used steroids by dividing the number of major league players who’ve been caught by the total of all baseball players at all levels: major league, minor league, semipro, college and Little League — and maybe throwing in football and basketball players as well.”

There have been 214 exonerations based on DNA evidence, almost all of them in rape cases, according to the Innocence Project at the Cardozo School of Law. But there is no obvious control group to measure these exonerations against.

The other important number comes from death row. According to the Death Penalty Information Center, 127 death row inmates have been exonerated.

Here we do have a control group. There have been more than 7,000 death sentences since the Supreme Court reinstated the death penalty in 1976.

As we discussed in 3150 last week, that's a capital trial error rate of 2-5% (or in terms of comparing executions [1,100 since 1976] and exonerations, a ratio of 1 exoneration for every ten executions). However, as Scalia and Joshua Marquis the Oregon prosecutor who supports the death penalty argue, not all exonerations mean the death row inmate was in fact "innocent" of the crime.
Many people exonerated in the legal sense, [Marquis] said, in fact committed the crime but could not be proved guilty beyond a reasonable doubt.
Except Marquis can't qualify "many", and most death penalty experts agree that the number of guilty men who were exonerated (who beat the system, in other words) is very small.

However, as the article notes, one thing most criminologists and law professors can agree on is that once you move past rape and murder/capital cases, we simply don't know the number of innocent people behind bars because things like DNA testing aren't going to help us determine wrongful burglary or larceny or drug-related convictions.

Scalia notes cryptically that error rates found on appeal (be it of capital or non-capital cases) is actually "good news."
“Reversal of an erroneous conviction,” he wrote, “demonstrates not the failure of the system but its success.”
Cold comfort for the wrongfully executed, and those who have had decades erased from their lives, one would assume.

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