Report Downplays Wrongful Convictions in U.S.

By Hans Sherrer

For Justice:Denied magazine

A report by University of Michigan staffers and law students – Exonerations in the United States: 1989 through 2003 – was released to the public on April 23, 2004. The report analyzed data from 328 cases during that 15 year period in which the defendant was officially declared, “not guilty of a crime for which he or she had previously been convicted.”

The report concentrated on rape and murder convictions, since 319 of the 328 cases studied involved a defendant convicted of one or both those crimes. One of two areas the researchers focused on, was how often several factors known to contribute to a wrongful conviction - eyewitness misidentification, perjury and a false confession - were present in those cases. It was found that 64% of the people exonerated of rape and/or murder had been misidentified, 15% had falsely confessed, and a prosecution witness had committed perjury in 44% of the cases.

The other area reported on is how race relates to exonerations. It was found that people of various races are exonerated at about the same rate as they are convicted – unless the person was under 18 at the time of arrest. Almost eight times as many blacks wrongly convicted of a crime as a juvenile are exonerated than are whites (77% to 10%). That finding is consistent with the phenomena of erroneous cross-racial identifications, since many of those cases involved the ID of a black person by a white.

So in general the report's findings tend to be a fine tuning of what is already known about wrongful convictions. However there is one area where the report engages in speculation, and that is about how many non-death row exonerations there would have been if all cases “were reviewed with the same level of care that we devote to death sentences.” That figure is estimated by the report to be 28,642 cases, and it refers to that as “a shocking prospect.” While appearing numerically impressive, the report’s estimate actually downplays the number of people that knowledgeable observers over the past four decades have estimated are wrongly convicted. Furthermore it doesn't just do so by a small number, but very significantly.

A judge interviewed for The Innocents, a 1964 book by investigative reporter Edward Radin, estimated that 5% of everyone convicted of a crime is innocent. The judge indicated that to maintain public support for the legal system, the appearance has to be maintained that it is fair by accurately distinguishing the innocent from the guilty.

In Presumed Guilty (1992), Rev. James McCloskey (the founder of Centurion Ministries, which is dedicated to freeing wrongly convicted people) is credited with estimating “10% of the people convicted of serious crimes each year are innocent.”

In Convicted But Innocent (1996), the authors conservatively estimate that 2% of everyone convicted of an offense included in the FBI's Uniform Crime Report is innocent. However, they also reported that judges, prosecutors and defense attorneys who completed a questionnaire think the number of wrongly convicted people exceeds 5%.

In January 2000, this author's estimate that 14% of convictions are of an innocent person was published in Justice:Denied magazine.

Furthermore it was reported in 1997 that the FBI found that 25% of the suspects in 12,000 rape cases were excluded by DNA testing. That finding is particularly significant because exclusionary DNA evidence is only available in a small percentage of all criminal cases.

So from 1964 to 2000 knowledgeable estimates of the number of wrongly convicted people range from 2% to 14%, and the finding of the FBI – an agency of the U.S. Department of Justice – lends empirical support to the higher figure.

Based on the most current Bureau of Justice Statistics data, it is estimated that from 1989 to 2003 there were 14,295,000 felony convictions in state and federal courts. So the report's estimate that there should have been 28,642 exonerations from 1989 to 2003amounts to 2/10th of 1%, or .2% of the felony convictions during those 15 years. Furthermore, the report's estimate amounts to a projected 1,909 exonerations a year out of 953,000 convictions – or 1 out of 500.

The Supreme Court inferred in Schlupv. Delo, 115 S. Ct. 115 (1995) that the legal system may only need to ascertain guilt to an accuracy rate of 99% (99 out of 100). Thus the reports contention that 499 out of 500 convictions are of a guilty person provides powerful support to the contention that while not 100% perfect, the United States has a discerning legal system. Hence if the report’s estimate of wrongful convictions is to be believed, then this countries legal system is neither broken nor in need of significant reforms. After all, the average new car has an average of over one significant problem within 90 days of its purchase, so with a correct conviction rate of 99.8%, car manufacturers ought to be consulting with judges and prosecutors on how to manufacture a more reliable product. Consequently the report plays directly into the hands of prosecutors, judges, police and corrections officials who contend the system works remarkably well at weeding out the innocent from the guilty.

However that assessment stands in stark contrast with the much different conclusion that can be drawn from the estimates of wrongful convictions from 1964 to 2000, the lowest of which extrapolates to an average of over 19,000 cases during each of the 15 years covered by the report. Solid support for the pervasiveness of wrongful convictions indicated by those numerous estimates is provided by the findings of a study published in June 2000. That study - A Broken System: Error Rates in Capital Cases – found that 68% of the 4,578 capital cases finalized from 1973 to 1995 was reversed on appeal; that “7% of capital cases nationwide are reversed because the condemned person was found to be innocent;” and that on retrial, the defendant was given a lesser sentence in 82% of those reversed cases. So based on the findings of that extensive multi-year study that was overseen by the esteemed Professor James Liebman (co-author of Federal Habeas Corpus Practice and Procedure), if every one of the 14,295,000 criminal conviction in this country from 1989 through 2003 had been subjected to the same degree of appellate review as is a capital case, then 9,720,600 of those cases (68%) would have been reversed, with the result that 680,442 of the defendants (7%) would have been exonerated, and 7,970,892 of the defendants (82%) would have been re-sentenced to a lesser punishment.

Consequently, the findings reported in A Broken System (and its follow-up report, A Broken System, Part II, February 2002) are consistent with the estimates from 1964 to 2000 that there are serious systemic errors in the ability of this country’s legal system to accurately distinguish the innocent from the guilty.

So while the analysis of various factors related to wrongful convictions in the April 2004 report is valuable information, its attempt to downplay the incidence of the phenomena must be taken with a grain of salt.