column this week called "Consensus on Counting the Innocent: We Can’t"
The column arose from a detailed opinion from US Supreme Court Judge Antonin Scalia, in
Kansas vs. Marsh, in which Scalia cited a series of writings by me on the subject of innocence
and the death penalty. I pointed out that the justice system may very well be operating with a
success rate (meaning rightful convictions) of about 99.973 percent.
It is certainly thrilling to be cited by a Supreme Court Justice. But, as with any research, the most
gratification comes from sparking a robust discussion. The opinion, like most of Scalia's work,
was pointed and controversial, and it begat a furious series of rebuttals both in academia and
on opinion pages.
Many people believe that any error is unacceptable. I would agree that we strive for that, but
the policy issue is: At what cost?
Cass Sunstein, law professor at the University of Chicago and noted progressive, set out the issue quite eloquently in a highly controversial article entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs." From the abstract:
Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent. The familiar problems with capital punishment - potential error, irreversibility, arbitrariness, and racial skew - do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat "statistical lives" with the seriousness that they deserve.
My writing on the subject began a few years back when Liptak sent me a study by Professor Samuel Gross of the University of Michigan that purported to document a startling number of wrongful conviction. Not long after that I was invited to be a presenter and writer to a symposium on the death penalty held in the November of 2004 at the campus of the Northwestern University Law School in Chicago. Prof. Gross was also on one of the panels discussing capital punishment. As it turned out, my article called "The Myth of Innocence" (not to be confused with the article of the same name that appeared in the National Review), was published in the Winter 2005 issue of Northwestern's Journal of Criminal alongside Prof. Gross'sarticle about "Exonerations in the United States, 1989-2003."
The central thesis of Professor Gross's study is his belief that wrongful conviction, particularly in murder cases, is epidemic; that the roughly 400 cases he could identify were merely the tip of the iceberg and that far more innocents remain undiscovered behind prison walls.
Only a fool would claim that our justice system is infallible. There were likely many false convictions before the exclusionary rule, mandated counsel for the accused, and the criminal jurisprudence that grew out of the Warren Court in the 1960s. The question is whether in modern America wrongful convictions are epidemic or episodic. The machinery of justice requires constant tinkering, but if it is hurling innocents into prison at a rate of 2 or 3 percent I would agree that such a system is dangerously flawed.
I took a close look at Gross's numbers and also at a list of cases he listed by state in which he claimed the defendants were exonerated. Some were from Oregon and others were cases I recognized and knew the background. It quickly became clear Gross considered exoneration to include reversal of a conviction and a not guilty verdict upon retrial.
Such a definition would seriously wound if nor torture the true definition of "exonerated," a word of great power that most people equate with actual innocence.
I agree with Prof. Gross that more than 400 innocent people probably were convicted in the United States between the 15-year period he studied, from 1989 to 2003. If that is in fact the number, the error rate would be so low as to barely merit notice, unless of course you or someone you cared for were one of the 400. But we should not make major social policy by anecdote. If we did, we would ban elective surgery and grossly restrict the ability of people to drive cars or receive medical prescriptions, all of which have a failure rate that results in tens of thousands of deaths annually.
The sensible and decent thing to do is to attempt to mold a system that minimizes as much as practical the risk of wrongful conviction. So, to give Professor Gross a fair shake, I assumed he undercounted wrongful convictions by a factor of 10 and that there were four thousand wrongful convictions for felonies in his 15-year period. In "The Innocent and the Shammed," an OpEd for the New York Times, published on January 26, 2006 and quoted by Scalia, I wrote:
So, let's give the professor the benefit of the doubt: let's assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent — or, to put it another way, a success rate of 99.973 percent.
We must aspire towards a system that discriminates so precisely between the guilty and the innocent that the error rate is as low as possible without unleashing hordes of sociopaths on society. A prosecutor's worst nightmare is not losing a case, it is convicting an innocent person.