Prisons

Punished for Being Innocent

Hardened criminals show a "lack of remorse"...and so do prisoners who didn't commit crimes at all.

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Over at The Huffington Post, former Reasoner Radley Balko writes about a phenomenon he calls "the innocence penalty":

Innocent people are much more likely to refuse to admit to their crimes–before and after conviction. (Although it still happens.) That "lack of remorse" often moves prosecutors to throw the book at them, judges to give them longer sentences, and parole boards to keep them behind bars for as long as possible.

Read the whole thing.

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  1. District Attorney: And that also is very convenient, isn’t it, Mr. Dufresne?

    Andy Dufresne: Since I am innocent of this crime, sir, I find it decidedly *inconvenient* that the gun was never found.

    1. A favorite. Geology. Quiet, patient deception. Using your enemy’s characteristics to your own advantage.

  2. Abhorrent as our criminal justice system is, calling it the “innocence penalty” is poisoning the well with overblown rhetoric.

    In other words, it seems as if Radley stared too long into HuffPo, and now it’s staring back into him.

    1. What would you call it?

      1. Technically speaking, the individual in the example Mr. Balko provides was found guilty and later found to be factually innocent.

        View it through the lens of the Court or the State or the People: here you have this guy, duly convicted by a jury of his peers beyond all reasonable doubt, and he is still lying to your face and refuses to be contrite. Obviously, because he evinces no remorse whatsoever, he needs a stiffer penalty than someone who has taken the first step and admitted that he done fucked up.

        1. That’s the error: courts and prison are for punishment, not for rehabilitation.

        2. You are making a big assumption, that the Court actually believes the guy is guilty. The prosecutor who suborns perjury, the judge who used to be a prosecutor, the parole board, all of them know what a vile cesspool of evil and corruption our legal system is, and have no reason to think the guy is lying to them, and may not actually be innocent.

      2. Randian is right. The problem is that we are fucking up and convicting innocent people. Radley seems to think the problem is that we are punishing people more who won’t take responsibility for their crimes. The only reason these cases are appalling is because the person is innocent.

        If someone actually is guilty, punishing them more because they refuse to take responsibility for their actions is perfectly appropriate.

        1. The only reason these cases are appalling is because the person is innocent.

          If someone actually is guilty, punishing them more because they refuse to take responsibility for their actions is perfectly appropriate.

          Exactly so. It isn’t an innocence penalty – it’s a Lack of Contrition Penalty.

          1. Yeah, after I asked I actually went and read the article. Not Radley’s best work. He seems to be slipping a bit.

            1. The title is fit. The penalty is aimed at a lack of contrition. His problem with it is that it punishes the innocent.
              Contrition is irrelevant to justice. You do the deed and you pay the price.

          2. It’s a “You’re pissing us off because you won’t debase yourself before The Mighty State” penalty.

            1. Bingo.

        2. What is the point of “punishing people more who won’t take responsibility for their crimes”? Just to be punitive? Does that somehow change the nature of the crime? The punishment should be equal across-the-board. Otherwise we’re in B.S. “hate crime” territory where intentions are taken into consideration as if they’re actually relevant.

          Not to mention most of the people caught up in the system are there for non-crimes like drug dealing anyway.

          1. What is the point of “punishing people more who won’t take responsibility for their crimes”? Just to be punitive?

            There are books on the theories of criminal justice and “Why We Punish” that if you’re actually interested you might check out some time.

            The punishment should be equal across-the-board.

            Not if rehabilitation is your goal. What are your goals for the penal system, exactly?

            Not to mention most of the people caught up in the system are there for non-crimes like drug dealing anyway.

            Wholly irrelevant to my point, which is that calling it an “innocence penalty” is inaccurate. It’s a penalty for lack of contrition that by the very nature of the universe is going to affect factually innocent people as well as factually guilty people who are not contrite.

            1. I think calling it an “innocence penalty” is only inaccurate if you presuppose rehabilitation as the correct goal. If you want to argue against rehabilitation as a goal, you could say that such a theory of criminal justice crates an “innocence penalty,” where punishment is worse if you are innocent because you can’t be “rehabilitated.” Punishment may also be worse if you are guilty and won’t be rehabilitated, but a criminal justice system focused on contrition will necessarily harm the innocent more than the innocent would be harmed under competing theories. (E.g., restitution won’t actually be worse for an innocent person than it is for a guilty person, even though exacting restitution from an innocent person is still unjust.)

              1. Innocent people getting convicted is the problem here. We’re trying to solve a problem that is a symptom, not the disease.

                1. Innocent people getting convicted is the problem here.

                  Is it? It seems we could outline it instead as “innocent people who are convicted are, under our current system, punished more harshly than wrongly convicted innocent people would be under a system that did not value contrition.”

        3. If someone actually is guilty, punishing them more because they refuse to take responsibility for their actions is perfectly appropriate.

          I disagree. The penalty should be commensurate with the crime, period. This shit is just a way for prosecutors and judges to remove any remaining doubts they may feel. The man groveled before me and begged for mercy! There can be no doubt of his guilt!

          1. The man groveled before me and begged for mercy! There can be no doubt of his guilt!

            “The man showed no remorse for his crimes! There can be no doubt of his guilt!”

            Heads they win, tails you lose.

          2. Yeah, sure, OK.

            It must be a nightmare world you live in where normal, everyday people are secretly mendacious monsters just dying to punish the pure and the chaste.

            “This shit”, as you call it, is the law. It doesn’t have anything to do with a prosecutor’s desire to be kowtowed to.

            If you’re going to criticize the justice system, you may want to actually learn something about it instead of reveling in your ignorance.

            1. Bullshit. Judges have plenty of leeway in what they will accept as sufficient demonstration of remorse. And why is it in the law, anyway? The obvious reality is that some innocent men will be convicted, so why force people into a confession? Why force anybody into a confession when, coerced by threats of additional jail time, it is clearly meaningless?

              1. Exactly. And the evidence that is is meaningless is apparent in the extremely high recidivism rates of released offenders.

            2. Except that all too often, the prosecution obstructs efforts that might clear those found guilty.

              If they weren’t self serving jerks, they might be more supportive of efforts at post conviction review.

              1. None of this is remotely relevant to the fact that calling it an Innocence Penalty is a load.

              2. Except that all too often, the prosecution obstructs efforts that might clear those found guilty.

                What? And admit to making a mistake? No fucking way!

                Better that an innocent man rot in prison than a prosecutor be found to be wrong.

                1. I see sarcasmic is too busy emoting to bother thinking.

                  1. Then why does it seem that prosecutors are openly hostile to the reopening of cases when new evidence presents itself?

                    Could it be because, I dunno, because they’d rather an innocent person rot than be proven wrong?

            3. where normal, everyday people are secretly mendacious monsters just dying to punish the pure and the chaste

              In some ways, I think accusing people of this is actually giving them too much credit, as it implies they bothered to learn what the actual truth is and then deliberately chose to do the opposite.

              I think it’s more “where normal, everyday people are completely indifferent about what happens to anyone they’re not emotionally attached to”

              1. See, the problem here is that phrase “actual truth”.

                The trial is designed to discover the “actual truth” of someone’s guilt or innocence.

                If someone has a better suggestion, I’m all ears.

                1. My point is that I don’t think it’s a case where the jurors are trying to figure out the truth or not. Most of them don’t really care whether the defendant is actually guilty or not, they’re just voting based on how much they like or dislike them.

                  1. Like I said, if you have an alternative, please feel free to say so.

                    1. Just because I can’t stop people from being evil doesn’t mean I have to like it.

            4. It must be a nightmare world you live in where normal, everyday people are secretly mendacious monsters just dying to punish the pure and the chaste.

              Look up for instance:
              San Diego, California DA Bonnie Dumanis
              North Carolina DA Michael Nifong
              Douglas County, Georgia DA David McDade
              Boulder County, Colorado DA Mary Lacy

              1. Why? Do you think that pointing to bad cases means you can extrapolate an Alex-Jones-level conspiracy?

                1. Self interest. It is in a prosecutor’s self interest to get convictions. Even if the person is innocent of the crime in question. Maybe they rationalize it to themselves by figuring the guy is a piece of shit and guilty of something, or maybe they simply don’t care.
                  But there are more incentives to get convictions than to let innocent people go free.

        4. But everyone involved knows how fucked up our legal system is, and should have no illusions about its ability to accurately assess guilt or innocence.

    2. It might be a bit hyperbolic, but its really not that far off. Innocent people are more likely to refuse a plea bargain, so they do (I assume) receive higher average sentences than the equivalent guilty.

      1. Except plenty of guilty people maintain their innocence for decades and even unto death.

        If a court knew that the person in front of them was innocent, they wouldn’t “penalize them” for it, they would set aside the verdict and let them walk out.

        Calling it the “Innocence Penalty” is basically benefiting from hindsight. Well, yes, this guy happened to be innocent, but the court didn’t know that at the time, did it?

        1. As a said, it is a bit hyperbolic, however, calling something which disproportionately affects innocent people convicted of a crime the “Innocence Penalty” does not seem outrageous. It is a real problem (albeit not one for which I have any idea of a solution), and thus I can’t fault Balko here.

          1. Disproportionate to what?

            1. Way late to reply, but anyway:

              To the guilty. I.e., innocent people have their sentences enhanced for lack of contrition more than people who are actually guilty (assuming this is true; it seems intuitive but I have no evidence).

          2. You missed the point that these people have been convicted of a crime. Judges don’t have the benefit of hindsight.

        2. So maybe sentence people based on their crime, and not based on them saying they’re very sorry and won’t do it again?

          1. If you want to have robots in charge, hey, be my guest. Ask actual criminal justice experts what they think of mandatory minimums and the sentencing guidelines.

            1. Wow. Is Randian Mary?

    3. Maybe call it the “wrongly convicted penalty”, then. Yes, you are guilty in the eyes of the law, and that is exactly the problem. If you are in fact innocent, you will be punished more for being honest.

      I;m not sure what can be done about it, though. The first thing would be to fix it so that only acts that actually harm other people are criminal.

      1. Well, this guy was convicted of sexual molestation of his daughters, so this would still be a crime.

        Like I said, it isn’t the Innocence Penalty or even the Wrongly Convicted Penalty. It’s the Lack of Contrition / Failure to Take Responsibility Penalty.

        If you are in fact innocent, you will be punished more for being honest.

        Again, the judge has just been told by a jury that they think you’re guilty. You aren’t innocent at the time of sentencing.

        1. You aren’t innocent at the time of sentencing.

          Wait, twelve random strangers deciding you are guilty suddenly makes you actually guilty?

          1. Wait, twelve random strangers deciding you are guilty suddenly makes you actually guilty?

            Yep. You’re not considered or found to be guilty, you’re fucking guilty!

            1. Yep. You’re not considered or found to be guilty, you’re fucking guilty!

              I guess the judge is just supposed to what, doubt the verdict and toss the whole case then?

              I don’t know God nor do I possess His knowledge. Apparently you guys do.

              1. I guess the judge is just supposed to what, doubt the verdict and toss the whole case then?

                Ow! Take that, straw man!

          2. Wait, twelve random strangers deciding you are guilty suddenly makes you actually guilty?

            What does make one guilty, Sparky?

            Just curious. Apparently you are omniscient so I would love to hear more from you.

            1. What does make one guilty, Sparky?

              How does actual committing of a crime grab you? If I don’t shoot somebody but then twelve people decide that I shot somebody does that then mean that I actually did shoot somebody?

              1. If I don’t shoot somebody but then twelve people decide that I shot somebody does that then mean that I actually did shoot somebody?

                According to Randian, yes.

              2. And how do you determine that, Sparky? How do you determine what “actually” happened?

                If you have an alternative to the jury trial, again, I’m all ears.

                1. Here are your words:

                  Again, the judge has just been told by a jury that they think you’re guilty. You aren’t innocent at the time of sentencing.

                  You are clearly saying that if a jury finds you guilty then you are in fact guilty. You seem to be implying that once you are determined to be guilty by a jury you might as well stop even trying to prove your innocence, because you’re guilty.

                  And how do you determine that, Sparky? How do you determine what “actually” happened?

                  This has fuckall to do with what I’m saying. A jury finding someone guilty doesn’t suddenly make that person guilty. And if you think it does, you’ll probably make a fine prosecutor.

                  1. you’ll probably make a fine prosecutor.

                    You’re damn straight Randian would make a fine prosecutor with a high conviction rate and open hostility to anyone with the temerity to ask that a case be reopened due to new exculpatory evidence.

                    After all, the person is guilty. The jury has spoken.

                  2. Looking at it from the perspective of the sentencing court, which I have encouraged you to give a go a few times now, YES in fact you are actually guilty to the court.

                  3. You are clearly saying that if a jury finds you guilty then you are in fact guilty. You seem to be implying that once you are determined to be guilty by a jury you might as well stop even trying to prove your innocence, because you’re guilty

                    Yeah, I didn’t say either of those things. What I said was is that when you are found guilty, the judge is not going to look at you as if you’re innocent. Because at that time, you are not, in fact, innocent anymore.

                    What should a judge do when faced with someone convicted? Presume the jury got it wrong?

                    1. Yeah, I didn’t say either of those things.

                      Here, let me copy your words one more time:

                      Randian| 1.23.13 @ 12:25PM |#

                      Again, the judge has just been told by a jury that they think you’re guilty. You aren’t innocent at the time of sentencing.

                      You said exactly that thing.

                      What I said was is that when you are found guilty, the judge is not going to look at you as if you’re innocent.

                      What you said is that when the jury finds you guilty, you’re no longer innocent.

                      Because at that time, you are not, in fact, innocent anymore.

                      Again you’re saying that a jury finding you guilty actually makes you guilty.

                      YES in fact you are actually guilty to the court.

                      Finally found it necessary to qualify your statement, did you?

                      You come here, nitpick Balko’s terminology, parse the fuck out of every statement some makes against you, then get pissy when someone does it to you. If you’re going to be a lawyer, I think you might be well served by cleaning up your rhetorical skills before entering a courtroom.

            2. It’s semantics. To say “found guilty” is to admit fallibility.

              Your insistence that they are “guilty” is claiming that the system is omniscient and infallible.

      2. Get rid of immunity for cops and prosecutors.

        1. Even if you did so, someone who was convicted by a jury doesn’t have much of case unless you can actually prove maliciousness on the part of the prosecutor and/or the police.

          Sometimes innocent people get convicted. It’s a complete and utter tragedy. It is also a part of life in world of imperfect knowledge.

          1. Sure. Shit happens. But the state compensation is a joke, if you get any at all. I say open the state up to full and unlimited civil suits, and not just because of some kind of malpractice by the prosecution. Let any false conviction for any reason be eligible.

  3. Tell all your liberal friends who are appalled by the treatment of rightfully appalled by Anthony Schwartz’s treatment that they should feel at least 1% as bad about stuff like this.

    1. Who is Anthony Schwartz?

      1. I think he invented rethit.com

  4. Innocent people are much more likely to refuse to admit to their crimes

    You cheat the Grand Inquisitor of his pious pleasure if you refuse to admit and recant your sins, and beg his forgiveness.

    How then can he redeem you?

  5. calling it the “innocence penalty” is poisoning the well with overblown rhetoric.

    Keep licking, I think you missed a spot.

    1. Pearls before swine, I see.

  6. If I was a prosecutor and one of my defendants who I knew was guilty because I got him to admit it in return for leniency later proved himself to be not guilty, I would charge that person with perjury for admitting to a crime he didn’t commit. Show me up, will they?

    1. If I was a prosecutor and one of my defendants who I knew was guilty because I got him to admit it in return for leniency later proved himself to be not guilty, I would charge that person with perjury for admitting to a crime he didn’t commit.

      That’s a good start, but I’d take it a step further and automatically level perjury charges at anyone pleading “not guilty.”

      1. No shit. They wouldn’t even be in court if they weren’t guilty.

        1. Prosecutors don’t waste precious government resources on innocent people.

          1. Prosecutors don’t waste precious government resources on innocent people.

            My point exactly. If you’re there, it’s because it’s already been decided that you’re guilty. The rest is just a series of formalities.

            1. What a load of bullshit.

              1. Perhaps a tad hyperbolic, but not total bullshit.

  7. Why is a person’s contrition (or lack of it) relevant at all to the penalty imposed?

    1. If you want to make the argument that it shouldn’t be, that’s fine, but keep in mind that the parole boards think it’s relevant.

      It’s the reason we call them “Rehabilitation Centers”. Now, you may find that laughable and that’s fine too, but contrition goes hand-in-glove with the stated goals of the penal system.

      1. Stated goals and actual goals are not always the same.

        1. So what? The question was asked “Why should contrition matter?” and the reason it matters is because it comports with the stated goals.

          1. No it doesn’t.

            Contrition is not required for rehabilitation.

            The only relevant question for rehabilitation is “how likely is this individual to reoffend?”, sure contrition is one way to show that it is an acceptibly low probability but it is not the only one nor is it a necessary one.

            Take for example an abused wife who commits premeditated murder on her Piece of Shit Husband. Whether or not she feels “sorry” for killing the man who abused her for years the fact is that she is unlikely to kill anyone else at any point in her life again and making her stay in jail longer just because she doesn’t feel sorry for it would be unjust.

            Further, as feelings cannot be proven, the desire for the convicted to show contrition is little more than a game allowing the Prison system to show they are doing something. The guilty scumbags with no conscience can easily put on a charade of feeling sorry and being contrite to get early probation or a shorter sentence, but someone who believes themselves to be innocent or justified in their actions will not be even though they are far less likely to even need rehabilitation in the first place.

      2. Regardless of stated goals, you cannot seriously say that the modern US justice system has the slightest thing to do with “rehabilitation”. We’ve moved far past that. It’s about retribution and punishment. Nothing more.

        1. Who are you arguing with?

        2. Actually, it’s about jobs and pensions for the prison system.

        3. “We’ve moved far past that. It’s about retribution and punishment. Nothing more.”

          So?

  8. Well, yes, this guy happened to be innocent, but the court didn’t know that at the time, did it?

    Haha, “there we were, skipping innocently through the wildflowers, when suddenly it began to rain.” That’s all well and good if you assume an even playing field.

    If prosecutorial misconduct were a capital crime, your argument might carry more weight.

    1. I know that Reason has been very good about exposing prosecutorial malfeasance and general failings of the justice system, but despite severe problems, not every trial or plea-bargain is the result of an evil cabal of corrupt attorneys and judges laughing their asses off at the poor railroaded defendant.

      You’ve let the exceptions become your own rule, either out of laziness or convenience or both.

      1. What the hell are you talking about?

        1. Try to read what I wrote, maybe?

  9. Remember though, people are fundamentally nice sohbet

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