Large Enough For Alarm

The argument is a good one, a real one, about the Catch-22 of getting parole. If there’s one thing every prisoner doing a long sentence in a New York State prison knows, he will not get parole if he does not admit guilt. David Leonhardt uses the story of 78-year-old Joseph Gordon, who was sentenced to 25 to life for murder.

Joseph Gordon, a 78-year-old man in New York State, falls into the second category. He has already served more than his minimum sentence of 25 years for a 1991 murder, and multiple prison officials and guards have supported his parole application. Gordon has “the character and moral compass to return to society as a productive member of his community,” wrote a former superintendent at Fishkill Correctional Facility, where Gordon is incarcerated.

But the parole board has refused to release him. The chief reason, according to the board, is Gordon’s continuing insistence of his innocence.

Gordon has become a “cause” defendant, and his story is told here.

The details of the case are messy and tragic. Gordon clearly committed a crime: He covered up the killing of a 38-year-old doctor who may have been having a sexual relationship with Gordon’s 16-year-old son. Gordon says that his son killed the doctor and the cover-up was an attempt to protect his son.

Is it true? Beats me, but I have no reason to doubt it. From the perspective of a jaded criminal defense lawyer, it could be true, or it could be a really good story that fits the known facts. From the perspective of the Parole Board, the “system,” he had his days in court, lost and so that’s that, he’s guilty. There is an entirely separate question of whether, after serving 25+ years in prison, he’s “paid his debt” and should be released. The Parole Board’s perspective is that if he can’t, won’t, admit his guilt, the answer is no. Gordon refuses to do so, so in he stays. Others do so because they want out, even though they were not guilty.

How do I know others were not guilty, convicted anyway, and are placed in that parole Catch-22? Because I’m a jaded criminal defense lawyer. Because I know where bodies are buried. Because I know who put them there and who didn’t. You can believe me or not. I know what I know.

But what I know and what Leonhardt, what those who don’t know where bodies are buried but are nonetheless certain they are, does not know is the extent of the problem.

The starkest injustice is the large number of people imprisoned for crimes they did not commit. This morning, tens of thousands of Americans woke up behind bars because of wrongful convictions.

Are there “tens of thousand” behind bars for wrongful convictions? There could be, but the linked article does nothing to prove it. And yet there it is, in the New York Times, blithely concluding that there are. Tens of thousands is a lot of people. An outrageous number of people. There is a substantive difference between people imprisoned “for crimes they did not commit” as opposed to “wrongful convictions.” A defendant can be factually guilty as sin and still wrongfully convicted. And a person can be innocent and properly convicted, too, as with a plea of convenience.

Consider that one academic analysis of death row inmates found 4.1 percent of them deserved to be exonerated — an estimate it called “conservative.” Another study, focusing on sexual assault cases, estimated a wrongful conviction rate of 11.6 percent.

That first percentage, 4.1% of death row inmates convicted, comes from a study conducted in 2014 that opens with interesting words.

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place.

Not that this should, or does, stop researchers from trying to ascertain the unknowable, but at least they recognize, up front, the limits of their effort. DNA has changed much about what we know about guilt, but it’s fraught with problems like almost all forensic science. And, of course, the nature of murder cases is very different than other types of criminal cases where prosecutions aren’t as dependent on memory, identification and science, junk or not.

The second percentage, the “estimated a wrongful conviction rate of 11.6 percent” for sexual assault, is similarly based on DNA.

Among cases where physical evidence produced a DNA profile of known origin, 12.6 percent of the cases had DNA evidence that would support a claim of wrongful conviction.  Extrapolating to all cases in our dataset, we estimate a slightly smaller rate of 11.6 percent. This result was based on forensic, case processing, and disposition data collected on murder and sexual assault convictions in the 1970s and 1980s across 56 circuit courts in the state of Virginia.

Two glaring problems immediately stick out. Back in the ’70s and ’80s, sexual assault was primarily about stranger-rape, as date-rape was not yet well recognized as a “thing.” Because of this, the issue was identification of the stranger, not consent of the known date, making this number essentially meaningless to the nature of the offense today.

Whatever the true number, it’s large enough for alarm. Our criminal justice system regularly puts a higher priority on winning a conviction than on achieving justice. And Black and Latino Americans are disproportionately imprisoned as a result, studies show.

At least Leonhardt notes after-the-fact that the numbers may not be “true,” even if this qualification would have been better said up front. But is it “large enough for alarm”? My view is that every wrongful conviction, every innocent defendant, is “enough for alarm,” but I take no comfort from false statistics.

When the Parole Board considers the release of any particular prisoner, it looks at one person. Neither bad stats, junk science, inappropriate prosecutorial motives nor disproportionate racial results, have anything to do with whether that one person before the Board should be paroled. And if the question is what the prisoner has done with himself since conviction to prepare for release, and that is the only question that should be considered, his admission of guilt is irrelevant to whether it’s time to cut him loose.

9 thoughts on “Large Enough For Alarm

  1. LRB

    “… if the question is what the prisoner has done with himself since conviction to prepare for release, and that is the only question that should be considered…”

    That seems an attractive way to go about it, particularly in the jurisdiction with which I am familiar (non-US), where the principal considerations are safety of the community and risk of reoffending. I can understand the argument that an admission of guilt could at least be factored into the question of rehabilitation, but it seems like your experience is that it’s dispositive in almost every case. Aside from the obvious injustice you discuss, isn’t the other side of the coin that the Parole Board only keeps prisons far too full and disincentives (or at least does not incentivise) good conduct from those who, understandably, give up any hope of an earlier release? Not the most well thought-out idea…

  2. Hunting Guy

    Exodus 23:7

    Keep far away from a false charge or action, and do not condemn to death the innocent or the righteous, for I will not justify and acquit the guilty.

  3. B. McLeod

    A similar Catch 22 struck Cosby. He wouldn’t confess and sign up for the sexual predator rehab. So, not only no parole, but the Pennsylvania-necked geeks are trying to have his conviction reinstated so they can put him back in.

  4. David Matthews

    I’m not a lawyer, I’m a math/stats guy, and even though this goes on every day, it still makes me sad:

    “While we acknowledge the hopelessness of our challenge, and thereby recognize the questionability of our methodology, not to mention our results, we will still report our findings to a precision of 1/10 of 1 percent.”

    “While the article I cited admits that it is worthless, I will still accept and use its results, down to that tenth of a percent.”

    1. SHG Post author

      People love to quantify, so they seize on this sort of thing. But it’s worthless, not that people who seize upon it care. And then it gets regurgitated a million times or published in the NYT and the worthless numbers are carved in stone.

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