The number for 2015 was 149. If that was out of 150, it would be a hugely significant number. But it’s out of tens of thousands, hundreds of thousands. Suddenly, 149 doesn’t seem like that big a deal.
In 2015, 149 people convicted of crimes large and small — from capital murder to burglary — were exonerated. It is the highest yearly total since this grim form of record-keeping began, in 1989.
In that time, there have been at least 1,733 exonerations across the country, and the pace keeps picking up. On average, about three convicted people are now exonerated of their crimes every week, according to the annual report of the National Registry of Exonerations. The registry defines an exoneration as a case in which someone convicted of a crime is cleared of all charges based on new evidence of innocence.
If there was someone with any gravitas asserting that our legal system was perfect, this would be significant. But no one does. Even the apologist platitude, “it may not be perfect, but it’s the best system there is,” incorporates the reality that mistakes will be made. So out of hundreds of thousands of convictions, there were 149 mistakes? Most people would not only not lose sleep over it, but feel pretty damned good about our success rate of convicting only the guilty.
These numbers are a bracing reminder that admissions of guilt are unreliable far more often than is generally believed. Some defendants, especially the young or mentally impaired, can be pushed to admit guilt when they are innocent. Some with prior criminal records may not be able to afford bail but don’t want to spend months in pretrial detention or risk a much longer sentence if they choose to go to trial.
This paragraph is a bracing reminder that we’ve fetishized the legal system, latched onto some of the more easily palatable explanations and obsessed over the “actually innocent.” Whether that’s because any actual grasp of how the legal system functions, not in theory but in the trenches, is too hard for people to understand, or because law is reduced to simplistic maxims because it’s too hard to explain complex problems to the public, is unclear.
As high as these exoneration numbers are, they still understate the scope of the problem, since not all cases involving misconduct come to light.
The effectiveness of this sentence is reliant on the acceptance of the notion that these 149 exonerations are “high.” The problem is that the rest of the sentence, that this number “understates the scope of the problem,” is true on many levels, far more than the writer of the editorial realizes. Or perhaps she does, but limits her rhetoric to what’s easily communicable, palatable to her readers.
The good news is that Americans are starting to grasp the depth of the problem. The Innocence Project, now more than 20 years old, has shown again and again how many ways a conviction can be obtained wrongfully. And in-depth investigations of questionable murder convictions by popular shows like “Serial” and “Making a Murderer” have led to calls for greater prosecutorial accountability.
Is this true? Are Americans starting to grasp the depth of the problem? Because of some silly, shallow, “in-depth investigations” by people without a clue, dished up like Big Macs with fries to other people without a clue?
The initial reaction to this New York Times editorial might be to support it, since its goal, to raise consciousness about the failings of the system, and most particularly about prosecutorial misconduct, is sound. The system is decidedly imperfect, and prosecutorial misconduct not only exists, but is a fundamental contributor to the inability of the system to achieve legitimate outcomes.
But it also does something that ultimately makes people stupider. By preaching to the choir, those who will find the number 149 to be significant enough to be moved to march, to scream, to cry for the innocents, it ignores the vast majority of the defendants whose lives are wrongfully burned.
We fetishize innocence. We call it actual innocence now in order to distinguish it from presumptive innocence. We applaud the exonerations without appreciating that they shift the burden of proof off the prosecution and onto the defendant, who is now expected to prove that he was innocent, whether by DNA in those few cases where it’s available, or the fortuitous discovery that some prosecutor did the dirty.
And then there’s the popular media selling stories, just as they sold stories about the heinous crimes committed by bad dudes and the nightmares they caused for their victims. These stories offer nothing illuminating, but are mere emotional anecdotes to appeal to the sense of naïve fairness of the perpetually housebound.
There is much wrong that should be known, understood, but it’s banal. It usually involves unattractive, unsympathetic people, who have led lives about which no movies will ever be made. They are often guilty of something, but not quite what people think. Not what the cops think. Not what the prosecutors think. But not pure as the driven snow, either.
The prosecutors may be venal in their concealment of evidence, their coercion of pleas, or they may be doing what they believe to be best, whether for the victim or society. Cops too, even though they have a horrible tendency to believe too much in their own insight of who is guilty and who deserves whatever it is they’re dishing out.
But these are all deeply nuanced problems, discernible only with a careful eye, a brutally honest adherence to facts, and a deep knowledge of the system. What these defendants, many of them, tens of thousands of them, have in common is that they will never be exonerated. They can’t prove their innocence.
Certainly, the conviction of the innocent is cause for concern. The conviction of those who will never be in a position to prove innocence is also a cause for concern. But when we only feel sad about the exonerated, the 149, the rest of them can burn in hell for all we care. As for the 149, if that’s all she wrote, then maybe we’re doing pretty well. Except it’s not true.