Prisons
Full of Innocents
By David Swanson
There are probably more innocent men and women in prison in the United States now than there were people in prison here total - innocent and guilty - 30 years ago, or than there are total people in prison (proportionately or as an absolute number) in most nations on earth.
By David Swanson
There are probably more innocent men and women in prison in the United States now than there were people in prison here total - innocent and guilty - 30 years ago, or than there are total people in prison (proportionately or as an absolute number) in most nations on earth.
I don't
mean that people are locked up for actions that shouldn't be
considered crimes, although they are. I don't mean that people
are policed and indicted and prosecuted by a racist system that
makes some people far more likely to end up in prison than other
people guilty of the same actions, although that is true, just
as it's also true that the justice system works better for the
wealthy than for the poor. I am referring rather to men (it's
mostly men) who have been wrongly convicted of crimes they
simply did not commit. I'm not even counting Guantanamo or
Bagram or immigrants' prisons. I'm talking about the prisons
just up the road, full of people from just down the road.
I don't
know whether wrongful convictions have increased as a percentage
of convictions. What has indisputably increased is the number of
convictions and the lengths of sentences. The prison population
has skyrocketed. It's multiplied several fold. And it's done so
during a political climate that has rewarded legislators,
judges, prosecutors, and police for locking people up -- and not
for preventing the conviction of innocents. This growth does not
correlate in any way with an underlying growth in crime.
At the
same time, evidence has emerged of a pattern of wrongful
convictions. This emerging evidence is largely the result of
prosecutions during the 1980s, primarily for rape but also for
murder, before DNA testing had come into its own, but when
evidence (including semen and blood) was sometimes preserved.
Other factors have contributed: messy murderers, rapists who
didn't use condoms, advances in DNA science that helps to
convict the guilty as well as to free the innocent, avenues for
appeal that were in some ways wider before the 1996
Antiterrorism and Effective Death Penalty Act, and the heroic
work of a relative handful of people.
An
examination of the plea bargains and trials that put people
behind bars ought to make clear to anyone that many of those
convicted are innocent. But DNA exonerations have opened a lot
of eyes to that fact. The trouble is that most convicts do not
have anything that can be tested for DNA to prove their guilt or
innocence. Here are
1,138 documented exonerations out of that tiny fraction of
the overall prison population for which there was evidence to
test. One study found that 6% of these prisoners are innocent.
If you could extrapolate that to the whole population you'd be
talking about
136,000 innocent people in U.S. prisons today. In the 1990s,
a federal inquiry found that DNA testing, then new, was clearing
25% of primary suspects. You do the math.
Of course
you can't simply do the math, because wrongful convictions could
be higher or lower for the available sample than for all
prisoners. What we can be sure of is that we are talking about a
large number of people whose lives (and the lives of their loved
ones) have been ruined -- not to mention the lives of additional
victims of actual criminals left free.
One way to
be fairly sure that the rate of wrongful conviction carries
over, at least very roughly, to a variety of criminal
prosecutions is to examine how those convictions came about.
Brandon Garrett's
Convicting the Innocent: Where Criminal Prosecutions Go Wrong
examines the prosecutions of the first 250 people exonerated by
DNA testing. Garrett finds broad systemic problems that could be
remedied but largely have not been.
Of the
250, 76% were misidentified by an eyewitness -- most of the
witnesses having been led to that act by police and/or
prosecutor, some of them badgered and threatened, others merely
manipulated. Invalid forensic science expertise contributed to
61% of the convictions, much of it willfully manipulated, some
fraction perhaps attributable to well-intentioned but negligent
incompetence. Informants, mostly jailhouse informants, and most
of them manipulated and bribed by police or prosecutor, helped
out in 21% of the trials. In 16% of the cases, the accused
supposedly confessed to the crime, but these "confessions"
tended to be the result of police intimidation, manipulation,
brutality, and simple lying. Garrett fears that similar problems
infect the U.S. justice system as a whole.
Garrett
focuses on problems in policy and perspective. People who
believe all eyewitnesses are correct and truthful can mean well
and nonetheless get an important point wrong. People who aren't
aware that false confessions exist won't look for them. But
people unaware of such things are not typically part of the
criminal justice system, where awareness of these problems is
built in but steamrolled over. Judges ask whether witnesses were
improperly led to misidentify a witness, but care little for the
answers they receive. While Garrett begins and ends his book by
claiming that pretty much everyone means well, the intervening
pages grown under the weight of endless malevolence. In reading
the book, I found myself over and over again scribbling "Did
this guy mean well?" in the margin.
Do police
feeding a false confession to their victim mean well? When they
falsely report on that procedure to a court do they mean well?
When they use tape recorders but shut them off each time they
feed the prisoner new facts, do they mean well? When they hide
evidence? When they destroy evidence? When they stack lineups
and pressure witnesses to make identifications? When they
hypnotize witnesses? When the prosecutor employs junk science
and knowingly makes false claims about it? When simple
procedures to avoid bias are known but avoided? When expert
witnesses lie for a living? When crime labs alter reports to
cover up exculpatory evidence? When police or prosecutors bribe
other convicts or codefendants to testify and tell them what to
say, but lie about that procedure? When the defense is denied
competent counsel or the ability to call witnesses? When the
judge effectively acts as part of the prosecution? When jurors
pressure and threaten a fellow juror to vote "guilty"?
"It is
almost unheard of for prosecutors to be disciplined or
sanctioned for misconduct," writes Garrett, who is no doubt also
familiar with this saying: "Power corrupts, and absolute power
corrupts absolutely." Garrett believes that serious reforms are
needed, and points to North Carolina where a commission has been
set up to aid in freeing and not convicting the innocent. If you
imagine that that's what appeals courts are for, read how they
handled these 250 cases. In 23 cases, the victim was tried more
than once for the same crime. One in a blue moon the system
works and frees an innocent -- just often enough to keep hope
floating out there like a lottery ticket in the distance. Even
when DNA clears a prisoner, a prosecutor may propose to try him
again, and then do nothing for years while he rots in prison
waiting. North Carolina has passed legislation reforming
procedures for eyewitnesses, requiring the recording of
interrogations, enhancing the preservation of evidence and
access to DNA testing, etc.
But one of
the major reforms needed is clearly a reform of attitude. And
that probably will come more quickly if we recognize what
current attitudes are. Jurors and judges should be aware of how
often many prosecutors and police officers pursue conviction at
the expense of the truth. They should not prejudge in that
direction any more than in the other, but they should be aware
of what they are up against. If, as a society, we valued the
freedom of innocents as much as the punishment of the guilty, we
would treat judges and prosecutors and defense attorneys and
police differently. We would reward protection of the innocent
as much as convictions. A "successful" prosecution would be
redefined as one that, first, did no harm. The police officer
who found an alibi for a suspect would be praised and promoted
just like the officer who found evidence of his guilt. A
defendant might even someday find it possible to gain
representation from an attorney who at least pretended to
believe in at least the possibility of his innocence, and who
behaved accordingly.
In the
meantime, we are generating and compounding tragedies by the
thousands. When James O'Donnell was wrongly convicted, he
exploded with anger and cursed the judge and jury. Then he
composed himself and said, "I am really sorry for my outburst. I
tried to be as civil as possible. I would never do a crime like
this. And my life is over now as I know it, my wife and kids'
life. I don't understand how the jury did this to me. It's
really not right, what they did. I was home in bed. I was
sleeping. I would never hit a woman. I have a wife. I never hit
my kids, ever. I never forced a woman to do anything in my whole
life. That's the God's honest truth . . . It's just -- I'm very
sorry for my outburst. Don't take my life away, please."
David
Swanson's books include "War
Is A Lie." He blogs at
http://davidswanson.org and
http://warisacrime.org and works for
http://rootsaction.org. He hosts
Talk Nation Radio. Follow him on Twitter:
@davidcnswanson
and
FaceBook.
http://davidswanson.org/
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