In an op-ed in the Washington Post, Michigan lawprof Samuel Gross writes about the “staggering number of wrongful convictions,”* an ironic title given that the one thing the op-ed can’t, and doesn’t, do is tell the reader what that “staggering number” might be. But Gross opens his op-ed with an anecdote, this one about the wrongful conviction of Rafael Suarez.
It’s a bad story, and the consequences were devastating to Suarez, but this is one guy. Why structure an argument about the “staggering number of wrongful convictions” around one guy? The requisite anecdote has become the staple of argumentation, a facile appeal to emotion, to empathy.
Its purpose is to grab us by the throat and challenge us to not care about the nightmare imposed on this poor, undeserving person by whatever evil it is under discussion. It’s the tyranny of the anecdote. How can you not care? How can you not see the wrong and want to right it? How can you not want to help?
What has happened to us that we are so child-like in our understanding of right and wrong that this has become the method of choice in persuasion? Gross, at the end of his op-ed, makes a persuasive case for the systemic mechanism in misdemeanor prosecutions. Nothing new or particularly revealing, but a solid argument:
Why then did they plead guilty? As best we can tell, most were held in jail because they couldn’t make bail. When they were brought to court for the first time, they were given a take-it-or-leave-it, for-today-only offer: Plead guilty and get probation or weeks to months in jail. If they refused, they’d wait in jail for months, if not a year or more, before they got to trial, and risk additional years in prison if they were convicted. That’s a high price to pay for a chance to prove one’s innocence.
Is this not sufficiently persuasive to bring to the top of the op-ed, to use as an opening paragraph even?
Police officers are supposed to be suspicious and proactive, to stop, question and arrest people who might have committed crimes, or who might be about to do so. Most officers are honest, and, I am sure, they are usually right. But “most” and “usually right” are not good enough for criminal convictions. Courts — judges, prosecutors, defense attorneys, sometime juries — are supposed to decide criminal cases. Instead, most misdemeanor courts outsource deciding guilt or innocence to the police. It’s cheaper, but you get what you pay for.
The gertruding, how “most officers are honest, and, I am sure, they are usually right,” is another device, used to calm the reactionaries who will scream that Gross is just a cop-hater who can be dismissed because he didn’t include the usual caveat.
So in goes the usual caveat, #NotAllCops, with his bit of rhetorical flourish, “and, I am sure, they are usually right.” Why is he “sure”? Are police officers one dimensional cartoon characters who are either honest or dishonest, good or bad, right or wrong? Are they not human beings, like the rest of us, with the peculiar quirks of having guns and getting to order other humans around like cattle?
But the point here is to start by widening the fringes, that it’s not just one or two outlier wrongful convictions, but a lot of them. A staggering number, in fact. One will never make a dent in the mindset of the ordinary person who is still, despite the stories that appear in the headlines of exonerations and needless police killings, generally supporting of the police for reasons of basic survival.
No matter how many times they hear of someone calling the police for assistance, and ending up maimed, dead or arrested, they still believe in them because they have no better number to call than 911, and there is comfort in believing that someone will most likely help.
But there is a bit about the “staggering numbers” buried deep in the midst of Gross’ op-ed:
How many people are convicted of crimes they did not commit? Last year, a study I co-authored on the issue was published in the Proceedings of the National Academy of Sciences. It shows that 4.1 percent of defendants who are sentenced to death in the United States are later shown to be innocent: 1 in 25.
Death sentences are uniquely well-documented. We don’t know nearly enough about other kinds of criminal cases to estimate the rate of wrongful convictions for those. The rate could be lower than for capital murders, or it could be higher. Of course, in a country with millions of criminal convictions a year and more than 2 million people behind bars, even 1 percent amounts to tens of thousands of tragic errors.
Why isn’t this the opening? Why didn’t Gross begin his op-ed with the best numbers he has, the only piece of information that begins to touch on the “staggering numbers” thesis? And, just to toss in a personal beef, the problem isn’t limited to fully guilty or fully innocent, but individuals who are overcharged; they possessed weed but not with intent to sell, for example, even though they are slapped with the higher charge.
The answer may be that there is some empirical analysis showing that facts and logical reasoning no longer cut it when trying to make a point to the public. The method of teary-eyed anecdote strikes a chord among those who are deeply sensitive to things that violate their finely-honed sense of injustice.
Or maybe we’re a nation who find thinking too damn hard, and feeling too damn easy, so we default to the lowest common denominator, proffer the sad anecdote up front and leave the facts for the three readers who make it past the first few paragraphs.
The only problem is that one can find, or fabricate, a sad anecdote for pretty much anything, and if that’s all it takes to pitch a real problem against the manufactured tears of every two-bit social justice hustler, then hard problems like wrongful convictions don’t stand a chance. Let’s face it, an anecdote about some guy named Suarez can’t compete with a story about a “pretty” woman who’s exhausted by men’s sexual demands. With pictures.
* In fairness, it’s likely that the headline for the op-ed didn’t come from Gross, and he had no idea someone would use the words “staggering numbers” as clickbait.