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.
“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.”
This is the daily drivel of cattle call and PDs en masse pleading out groups at a time with palpable pleas. By the time the “client” knows what the full deal entails they’re already back on the bus to jail for release processing. And then when they miss a probation payment and are violated with no bond they take another conviction and serve a few days before being placed on probation again or are terminated unsuccessfully and finish out their term in prison. Actual innocence, partial guilt, parsing the facts takes backseat to the convenience of returning to your family, pets and life.
I have no solution offhand but I think your quote explains the lack of legal motivation to effect change.
Happy Valentine’s Day, SHG!
Happy Valentine’s Day, Marc.
The non-lawyers I spend my days with genuinely believe the maxim that it’s better that ten guilty should go free than that one innocent should be punished, but they conveniently forget about it every time circumstances ask them to split the baby. They’re just as concerned that a “criminal” could “get off on a technicality” (like the fourth amendment) as they are about unsavory characters being overcharged and over punished.
And they will view the innocence project’s successes as proof of how well our system corrects itself. They’ll take comfort that their concern about the justice system is now at an appropriate level. Because they watch Serial, and the article says that if you watch Serial, your awareness has been raised.
We’ve become so intellectually non-confrontational that any time we want to address a problem, we have to celebrate the nonexistence of the problem in order to not offend anyone who doesn’t particularly care about that specific issue. And it’s almost reasonable to take such offense in a culture which applauds no virtue other than that of holding the correct opinions. It isn’t the system that needs fixing, it’s us, as individuals, that need to want to improve.
> But when we only feel sad about the exonerated, the 149…
Except we don’t feel sad. We express sadness and outrage, to mask our fear. These are canaries in the coal mine, telling us what could happen if we wind up in the meat grinder. These are only the canaries we know about; there are almost certainly more. We pay for the meat grinder; we want it to exist; we want it grinding on those other people, but we’re also worried it might grind on us.
Now intellectuals like you might look at these numbers and say “gee, we’re twice twice as likely to be hit by lightning as to be exonerated, so convictions of innocents is nowhere near the biggest problem in the system.”
But some of us can look at this 149 number and compare it to the population of the country, and understand perfectly well that we’re over 100 times more likely to be exonerated in a given year than we are to pick the winning Powerball numbers on our next ticket. And since we’re planning on winning at Powerball some time this year, those odds are really scary.
I see what you did there. No, I do not forgive you.
Oh, I see it now too! I wrote twice twice. No, wait, what I mean is I wrote twice, twice. Gee, now I’ve written twice twice thrice. Oops, once more, and I can’t even find a word for that.
I can fully understand how I may have offended your intellectual sensibilities with my poor proofreading skills, and will endeavor to do better in future.
Nope. That wasn’t it. I do that all the time. No biggie.
If I’m to remain unforgiven, it might as well be for a better reason than obvious fallacious reasoning when critiquing fallacious reasoning, so I offer this: it’s 69 degrees in my backyard.
Unless you’re responsible for that, I cannot hold you responsible.
I’m not responsible for the fact that Americans can’t do math word problems or for the temperature, just for making fun of the one and gloating about the other. Hate the messenger, not the message.
Happy Valentine’s Day, anyway. I’m off to go party. (It’s my 30th anniversary, as well.)
Happy 30th Anniversary. And don’t worry about it. It will come to you eventually. Or maybe not. Whatever.
It was a great party, but full of people just as dumb as me — probably not intellectual enough for you.
Or maybe it was just the margaritas.
There. You did it again. That’s twice.
Actually, it’s three times. I thought that you knew that I knew that you didn’t care about proof-reading the comments, so I snuck it into that comment just for your reading pleasure. I was surprised you didn’t notice it
Jeez, can’t these people do math?
The LOW end of the false conviction rate (I’m including ‘false pleas’ here) is almost certainly more, probably much more, than 1%. After all, 1% error–if we could get it–would be an AMAZING result for pretty much any system, to the degree of being nearly impossible to do. There’s not a ton of basis to believe we’ll magically do the best accuracy ever achieved in human selection via the court system, to put it mildly.
Run that % through 2.5 million prisoners and you end up with 25,000. As a low end. Not that those 149 aren’t deserving, but they’re a drop in the bucket. If you’re going to live in Omelas you have to acknowledge the realities of the system.
Imagine how it would look if you actually knew what the reality is rather than played the numbers.
That would be nice! But as you know it’s not a simple thing to find the false conviction rate. Some folks try but it is both inherently inaccurate and hideously expensive to do, not to mention that it is nearly impossible to prove absent highly unusual circumstances. And even after all that, sample sizes and controls are horrible.
When something can’t be measured, it often seems to turn out that averaging estimates of experts is surprisingly accurate. You’re an expert: If you were to guess at a lower bound, upper bound, and actual number, what do you think it is?
Your reply button is broken? I don’t guess. That’s for academics, outsiders and dilettantes to do. Criminal defense lawyers live it.
Good answer. True dat. Hopefully, that will teach him!
Why not?
It’s difficult to judge the size of the problem without some sort of data. You LIKE data. And if you get a bunch of experts together and ask them to make predictions, it turns out that group outcomes are actually quite predictive.
Your guess alone may not be worth much–though it’s worth more than mine–but the aggregate of “all the guesses of people like you” is probably one of the best datapoints you can get.
Do I not indulge your childishness enough by posting your insipid comments? Must you test me?