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VOLOKH CONSPIRACY

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How often are innocent persons convicted?

In a new law review article, I try to provide a realistic estimate of the rate. I come up with tentative range of somewhere between 0.016% and 0.062% -- well below the figure of 1% to 4% that is often cited as the conventional wisdom.

The Arizona Law Review has just published a mini-symposium on the issue of how often innocent persons are convicted in the criminal justice system. A number of scholars have suggested that this error rate might be at least 1% -- and perhaps as high as 2%, 4%, or even more. Professor George Thomas and I challenge such estimates in our three articles -- my opening article, his response, and my reply. We both suggest the error rate is lower than 1%, and by my calculations, the error rate is probably substantially lower.

In my opening article, I explain that a growing body of academic literature discusses the problem of wrongful convictions—i.e., convictions of factually innocent defendants for crimes they did not commit. But how often do such miscarriages of justice actually occur? Justice Scalia cited a figure of 0.027% as a possible error rate. But the conventional view in the literature is that, for violent crimes, the error rate is much higher—at least 1%, and perhaps as high as 4% or even more.

My article suggests a much lower estimate is appropriate. Based on a careful review of the available empirical literature, it is possible to assemble the component parts of a wrongful conviction rate calculation by looking at error rates at trial, the ratio of wrongful convictions obtained through trials versus plea bargains, and the percentage of cases resolved through pleas. Combining empirically based estimates for each of these three factors, a reasonable (and possibly overstated) calculation of the wrongful conviction rate appears, tentatively, to be somewhere in the range of 0.016%–0.062%—a range that comfortably embraces Justice Scalia's often-criticized figure.

If my article's tentative error-rate range is correct, it means that previous scholarship has significantly overstated the risk of wrongful conviction. Moreover, it is possible to compare the lifetime risk of being wrongfully convicted to the risk of being a victim of a violent crime. The relative risk ratio appears to be about 30,000 to 1. This decidedly skewed ratio suggests that reform measures for protecting the innocent may need to be cautiously assessed to ensure that they do not interfere with the important goal of prosecuting the guilty.

Professor Thomas' article then advances a slightly different view, partially in response to mine. Thomas argues that the DNA revolution has revealed that the conviction of an innocent defendant by the vaunted American criminal justice system is far from a freakish event. The National Registry of Exonerations now lists more than 2,200 cases of wrongful convictions. Thomas notes that 2,200 cases is a minuscule number compared to the roughly 1.5 million felons in state and federal prisons at any given moment. But the last quarter century has seen a vigorous debate about the error rate that leads to the conviction of innocent defendants. Estimates have ranged from 0.027% to 15%. Thomas finds most estimates are in the 0.5% to 2% range.

Professor Thomas then makes the first effort to draw on an existing data set of actual claims of innocence to estimate the overall error rate in the criminal justice system. The data come from the North Carolina Innocence Inquiry Commission (NCIC), a unique program that allows applications for exoneration from convicted felons. Conservative assumptions about the North Carolina data set produce a likely error rate of 0.125% to 0.5%. Though his estimates of the wrongful conviction rate are limited to North Carolina, Thomas finds no reason to think that the error rate is materially different in other states. His article is, in part, a response to my opening article (discussed above). Though Thomas' findings as to the estimated error rate are higher than mine, he agree that previous estimates tend to be generally too high.

In the last of the three articles, I briefly reply to Professor Thomas. I agree with him that determining an error rate for wrongful convictions remains among the most pressing problems in criminal justice research. And his use of the NCIC data provides an intriguing way to make that determination. My reply article reassesses Thomas's North Carolina estimate rate, concluding it to be somewhat too high. It then looks at another state—my home state of Utah—to find another possible jurisdiction-specific error rate. Properly calculated, the wrongful conviction rates for North Carolina and Utah support my earlier-offered suggestion of a wrongful conviction rate in this country much lower than the rates commonly suggested in other wrongful conviction literature. My reply concludes by underscoring the important point of convergence between Thomas's estimate and my estimates: both are much lower than the conventional wisdom on the subject suggests.

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  • Stricj||

    How did your study methodology take into account the conventional wisdom (at least if you watch all those shows on TV), that many people accept plea bargains because they can't afford to mount a defense rather than because they're guilty. While not everyone has the power of a special counsel weighing down on them, it's easy to believe most people can't afford an effective defense and a plea bargain, even an unjust one, may be the best outcome we can hope for.

    Or that for another study?

  • TGGeko||

    I think by convictions he only means "goes to court and is found guilty".

  • Stricj||

    I was trying to get some clarity around this statement: "It is possible to assemble the component parts of a wrongful conviction rate calculation by looking at error rates at trial, the ratio of wrongful convictions obtained through trials versus plea bargains, and the percentage of cases resolved through pleas". If there's bias in the plea bargain process, it would affect the estimates.

    The answer I was looking for was in http://reason.com/volokh/2018/.....nt_7541556 and the reply below.

  • Bubba Jones||

    Only the "most" innocent with the best alibis are going to risk a trial. People who can affirmatively prove their innocence.

    That is a highly selected population.

  • Brett Bellmore||

    People who can affirmatively prove their innocence, and have deep enough pockets to afford doing so.

  • Brett Bellmore||

    "A possible complicating fact, as discussed below, 177 is that an innocent person may commit another crime in pleading guilty to a crime he did not commit — perjury during the plea colloquy in attesting under oath to his guilt."

    It strikes me as deeply offensive to treat a coerced confession as the crime of perjury.

    "But particularly where defendants (like Kagonyera and Wilcoxson) have made no effort to enter Alford pleas, 218 a decision to mislead the Court and enter a guilty plea produces a wrongful conviction that is,
    at least to some extent, the result of illegal choices on their part and presumably entitled to somewhat less weight in any social - harm calculus. 21
    "

    It strikes me as doubly offensive to treat this crime of perjury as a form of culpability which reduces the seriousness of their having been coerced into confessing. In fact, I might go so far as to call it monstrous.

  • bernard11||

    You know, Brett, you are absolutely, 100%, right.

    I couldn't agree more.

  • Krayt||

    It has reached the "tax collection tax" state of Robin Williams' Popeye, but without the humor.

  • santamonica811||

    I was forced to watch Williams' "Popeye" while on a date. There was absolutely no humor there either.

  • Rev. Arthur L. Kirkland||

    Good points, Brett Bellmore.

  • Toranth||

    Actually, that might not be bad. Because if we treated a false confession as part of a plea bargain as perjury, couldn't we also charge the prosecutor with subornation of perjury?

  • TwelveInchPianist||

    Sure. Right after we charge them with all the Brady violations they're guilty of.

  • Brett Bellmore||

    And who exactly gets to exercise "prosecutorial" discretion? Oh, yeah: Prosecutors.

  • donojack||

    Maybe we aren't having a national divorce after all, at least with Paul Cassell around to bring us together.

  • Dilan Esper||

    Yeah. Left and right unite in opposition to former prosecutor with extreme prosecutorial mentality.

    I would add one other thing here. If innocent people weren't convicted, the Innocence Project (the source of thes studies he criticizes) would have never won any cases. When they got going, they immediately identified and exonerated NUMEROUS convicts with DNA testing. The very thing that Prof. Cassell swears cannot happen except in the exceedingly rare case actually happened a lot.

    And why wouldn't it? Prosecutors rely on a bunch of questionable evidence:

    1. Police officers who routinely, and at prosecutors' direction and encouragement, perjure themselves and are never prosecuted or punished for it.
    2. Jailhouse informants trying to get out of jail.
    3. Alleged co-conspirators trying to escape a prosecution or lighten their sentence.
    4. Eyewitness testimony, which is notoriously unreliable.
    5. Physical evidence "found" by police officers in category (1), which on occasion gets planted.

    There's no way you would expect that routinely relies on such crappy, unreliable evidence, and advances the careers of prosecutors who get convictions under the system, wouldn't throw a measurable number of innocent people into jail.

  • TwelveInchPianist||

    "Yeah. Left and right unite in opposition to former prosecutor with extreme prosecutorial mentality"

    Judge, dude. This idiot is a former federal judge.

  • Dilan Esper||

    Both. He worked at the US Attorney's office before his judgeship.

    That's where he acquired his prejudices.

  • Jerryskids||

    Grand Inquisitor is the preferred term, friendo. He knows everybody's guilty, even if we have to torture a confession out of you. And if you falsely confess under torture, why, you're guilty of falsely confessing!

  • Paul Cassell||

    I agree that the system "throws a measurable number of innocent people into jail." The question I was trying to address -- as was Professor Thomas in the follow-on article -- is, when we try to measure the number, how big is the number. I come up with a range of 0.016% - 0.062%. Professor Thomas' is higher, but still well below the figures that are often cited in this area.

  • MatthewSlyfield||

    The problem is that both you and Professor Thomas seem to only be counting actual completed conviction reversals as "innocent people into jail". This is nonsense, it amounts to assuming the conclusion at the beginning.

  • NToJ||

    "The very thing that Prof. Cassell swears cannot happen except in the exceedingly rare case actually happened a lot."

    Isn't that his data? Why do you think he's overlooking actual innocence cases?

  • phoqueue||

    Cassell is a hardcore victims rights advocate who has a strong interest in reaching conclusions adverse to those accused of crimes. Maybe he's right. Maybe he's not. But it's worth keeping in mind who he is and what he's trying to accomplish.

  • Rev. Arthur L. Kirkland||

    He was invited to join the Volokh Conspiracy, which indicates he is a movement conservative and Republican, likely one whose desire to maintain an academic veneer inclines him to masquerade as a libertarian periodically.

  • yoyo||

    You may well be right re VCers generally being conservative and Republican. what's your evidence, though...?

  • MatthewSlyfield||

    "what's your evidence, though...?"

    They don't agree with his positions on various issues.

  • yoyo||

    Ha!

  • NToJ||

    I don't have access to the case, but from the article, the confession from the two defendants doesn't appear to be coerced. They made the confessions at their guilty-plea hearing, under oath. This wasn't in the bowels of some prison. Kagonyera lied about his involvement in the murder while he was being represented by defense counsel.

  • Brett Bellmore||

    When I say "coerced", I don't mean, "as a result of torture". I mean that it was done as a result of threats.

    Mostly the threat will be the cost of undergoing a trial, (Famously, the process IS the punishment.) and being over-charged and risking a much worse sentence if not acquitted.

  • NToJ||

    So you don't mean coerced. Got it.

    I doubt that people manufacturing a plea of guilty of murder are trying to avoid the cost of a trial. Rather, the thing they're trying to avoid is being put in jail forever for other crimes they did commit, and for which the prosecutor has them dead to rights.

  • James Pollock||

    If you go down to the prison and ask around, I bet you'll find the rate of false convictions approaches 100%. This might make you panicky, but if you then proceed to the prosecutor's offices, they'll reassure you that the rate is absolutely, positively, 0.00%.

    There's an Oregon case where the public defender suggested her client plead guilty... after the grand jury returned no true bill. Does that count as a "false conviction"?

  • DJK||

    And the former prosecutor comes up with a number that is close to zero. News at 11.

  • James Pollock||

    Next time, try reading at least as far as the second sentence before you compose your response.

  • ||

    I'd take that bet. There are people for whom prison is rehabilitative, who acknowledge their guilt, and successfully re-enter society.

    I concur that there will be many people falsely who claim a false conviction.... But I sincerely doubt it approaches 100%.

  • Krayt||

    When DNA testing came around, very few behind bars screamed, "Test me!"

  • Smooth Like a Rhapsody||

    Because only a small percentage of criminal charges are based on DNA evidence.

  • Roy010101||

    I'm interested in separating out wrongful convictions from trials versus wrongful convictions from plea deals. To me, I think they're separate issues that would benefit from being kept separate in analysis. For example, the error rate of plea deals to me would have less bearing on policy regarding what's admissible evidence in trial than the trial error rates.

    Of course, a defendant also considers what's admissible evidence for a trial when deciding to take a plea (and negotiations.)

  • Paul Cassell||

    My initial article allows the two subjects (wrongful conviction after trial vs. wrongful conviction by plea) to be considered separately. I conclude that the error rate at trial is about 0.82%. (See page 836.) The error rate by plea is lower (consistent with research described at pp. 844-46) and is indirectly calculated by estimating that 20% of those who are wrongfully convicted will be wrongfully convicted by plea. This is slightly more generous than the current figure in the National Registry of Exonerations, which lists 17% of the "exonerations" as involving conviction by plea. (Page 846).

  • Roy010101||

    Thanks Paul

  • eyesay||

    Without doing any research, it strikes me as unlikely that the percentage of people who agree to plead guilty in a plea bargain who are actually innocent is lower than the percentage of people who are convicted who are actually innocent, and it strikes me as unlikely that either of these numbers is below 1%.

  • TheAmazingEmu||

    The chance of a wrongful conviction is a significant factor in an innocent person taking a plea deal so it's not ideal to separate both entirely.

  • Liberty Lover||

    This is the new USA. No need for a conviction, being accused or charged now means guilty regardless of the evidence.

  • James Pollock||

    The government has to presume you're innocent until proven guilty.

    Nothing says any private individual has to do so, and they're free to reach their own conclusions and form their own opinions. You're angry because people are using their freedom.

  • Martinned||

    I think you're confusing legal duties and moral ones.

  • James Pollock||

    I don't think a government has moral duties, what with lacking a soul and all.

    Meanwhile, I remain free to think that O.J. murdered his wife, and to therefore not invite him to any of my parties.

  • NToJ||

    "I don't think a government has moral duties, what with lacking a soul and all."

    Since "government" is just human action, decisions about what governments ought to do are moral ones.

  • James Pollock||

    "Since 'government' is just human action, decisions about what governments ought to do are moral ones."

    I don't buy it.
    Individuals have morals, Groups of people (which is what government is) do not have morals.

    Consider, for example, what happens in a riot.

  • Smooth Like a Rhapsody||

    So a corporation/government is incapable of an immoral act?

  • James Pollock||

    "So a corporation/government is incapable of an immoral act?"

    Yes. The people who make decisions for that corporation/government, on the other hand, are quite capable of doing so.

    Now, corporations and governments are also capable of taking actions that would be immoral, if performed by an individual.

    And your terms are incomplete... religions belong in the category along with corporations and governments.

  • NToJ||

    "Consider, for example, what happens in a riot."

    Some people behaving immorally?

  • Roy010101||

    Also, how are multi-charged defendants considered in your analysis? Are the error rates just considering pleas where the person was considered guilty or innocent of all charges they plead to, or were partials considered?

    For instance, lets say former Trump lawyer Michael Cohen plead guilty to tax evasion and illegal campaign contributions. Let's assume that Cohen was innocent of the campaign contributions charge and that if he took it to trial he for sure would have been found innocent of that charge, but would have been found guilty of tax evasion. Since the plea was for 5-7 years for all charges and the risk would have been 10-20 just on the the tax evasion charges if he took it to trial (and of which he knew he was guilty of and would have lost,) so of course he's going to plead guilty to the tax evasion charges too. So is this considered an error, a success, or a partial in your calculation?

  • ||

    Obviously that's a calculus Mr. Cohen gets to make, but in a well-structured judicial system this could, at least in theory, be accounted for as well.

    As a law clerk, I assisted with a Federal trial where an individual was charged with opiate possession and possession with intent to distribute. He offered to plead to the possession, but maintained it was for personal use (he was traveling in his RV, was addicted, and the quantity was enough for the days required to get him to his destination without going into withdrawal); the USA refused to make that deal. So he took the possession with intent to trial. Freely admitted possession to the jury, and explained why he wasn't a distributor and not guilty of that particular charge.

    Jury convicted on the possession (duh), acquitted on possession with intent. From my view on the sidelines, in was exactly the correct result.

    Judge sentenced him as if he had pleaded guilty, including (if I recall correctly, it's been quite a few years) a downward departure for acceptance of responsibility. He ended up with a sentence a lot shorter than pleading guilty as demanded by the US Attorney.

    So while this is probably a not-so-common outcome,

  • ||

    whoops, clicked submit too fast.

    So while this is probably a not-so-common outcome, all-or-nothing is not the only possible approach for a defendant.

  • ||

    How interesting. A lawyer finds the legal process of determining guilt from innocence- i.e. one important aspect of the work of all attorneys- is wrong less often (by a wide margin) than, say, the FDA in vetting new drugs or surgical techniques. The latter, it seems to me, being, curiously given the author's conclusion, easier in the sense that science and statistics come more directly into play.

  • Krayt||

    The FDA being overly restrictive can save lives, but also cost lives by delaying introduction.

    Quite frankly, the sweet spot for saving the most lives decade after decade is probably being even more lenient and risky.

    But "my relative died because this drug got to market too soon" is easier to prove and great for the cameras. Meanwhile "my relative died along with 3 million others worldwide because a heart drug took 6 extra years for approval" gets no camera facetime at all, no sadly shaking heads on evening news shows.

  • ||

    The phrase to which you responded was, "say, the FDA" by which I mean to cite that organization and its fact finding methodology as one of many.

    I'm aware of the particular issues the FDA would ideally choose to be informed by as it went about its business, but I don't think those particulars were the gist of my argument.

    Perhaps I'm just being obtuse.

  • Sarcastr0||

    Given sample bias issues that seem universally acknowledged in the studies above, I'm not sure how amenable this is to statistical analysis currently. A tell is how without much massaging needed, the marginal differences in the various study results align completely with the policy preferences of the authors.
    As such, it looks to me that these studies just show the policy preferences of their authors and not much else.

    Luckily, the policy questions around wrongful convictions tend to turn on more moral-anecdotal than statistical-utility ground.
    And this is more an exercise in policy advocacy than anything else. Not a policy direction I care for, but YMMV.

  • James Pollock||

    " the policy questions around wrongful convictions tend to turn on more moral-anecdotal than statistical-utility ground."

    The builders of the justice system put in a mechanism to handle wrongful convictions... executive clemency. Which DEFINITELY handles things anecdotally.

  • Sarcastr0||

    Good point, though as currently practiced it doesn't operate in that way very often.

  • Longtobefree||

    How does actual perjury figure into these numbers? That is, convicted though innocent based on deliberately false testimony. Not because new technology (DNA) proves innocence, but deliberately planted 'evidence' and the like.

  • Paul Cassell||

    The estimates I offer (and Professor Thomas offers) are based on all forms of wrongful conviction. About 57% of the cases in the National Registry of Exonerations involve some form of perjury or false accusation.

  • James Pollock||

    What's your definition of "false accusation"?

    An incorrect identification is a false accusation, but this was a question about deliberate false testimony. There are known deficiencies in witness identifications, particularly cross-racial ones, that can make them incorrect but not deliberately false.

  • Smooth Like a Rhapsody||

    Is it a false conviction when defendant is charged with crime A, of which he is most likely guilty; but, then pleads guilty to lesser offense B, of which he is technically not guilty, but of which everyone involved pretends that he is guilty?
    This happens all the time in local jurisdictions.

  • santamonica811||

    I also wondered about this. If I plead guilty to crime X (but am 100% innocent of this charge), in order to avoid being charged with Y, Z, and Q offenses, is this considered a false conviction or not? Since this sort of thing happens pretty often with plea deals, I would think it's important to know how these situations fit into the analysis.

  • James Pollock||

    I'm leery of putting numbers to this question.

    We, collectively, want there to be no innocent person convicted of a crime, ever. But there are countless instances (I chose the word "countless" deliberately) where the available evidence points to the wrong person, and even more where it is misinterpreted to point to the wrong person, and a few where it is manipulated to point to the wrong person. In short, there's a reason that death-penalty appeals take decades to resolve in states that are not Texas.

    To know what the false conviction rate is, one would have to have absolute knowledge of guilt or lack thereof, and if we had that, the false conviction rate would be 0.00.

    The false conviction rate jumped substantially when DNA testing became available. Who's to say something invented tomorrow doesn't show that a whole lot more unsuspected false convictions exist?

  • Eddy||

    Wait, are we assuming that all those convictions which haven't been *proven* wrong, are correct convictions?

  • Brett Bellmore||

    I think it's more like "all those convictions stringently examined that haven't been proven wrong", but, yes, it does seem to preclude the possibility that there's some class of wrongful convictions that systematically escapes stringent examination.

    Like those involving coerced confessions, for instance.

  • Eddy||

    If a case goes to trial there's supposedly a stringent examination, with the benefit of the doubt supposedly going to the defendant, yet we see innocent people convicted even in these circumstances.

    A post-trial examination of a conviction, with the convicted person having the burden of showing innocence, would presumably have even more errors to the disadvantage of the convicted person.

  • Brett Bellmore||

    Depends; Post trial examinations within the legal system are biased against the introduction of some sorts of evidence, while post trial examinations outside it are hobbled by lack of discovery rights.

  • James Pollock||

    "A post-trial examination of a conviction"

    We don't really see those, except in cases where either A) new evidence surfaces (such as someone else saying they did it) or B) a completely new technique of examining evidence is developed. We saw one of those recently, with DNA analysis. There was an uptick in overturned convictions for reasons of actual innocence when DNA testing became feasible.

  • Eddy||

    OK, so there's also the cases where there *isn't* a post-conviction re-examination. By definition even less likely to uncover wrongful convictions.

  • James Pollock||

    Some are found by informal actors rather than governmental actors.

  • Eddy||

    But how does a private or govt group sort through all the convicts claiming innocence? With the large number of claims, when you're getting jaded at so many people claiming to be innocent, the actual innocent guy may slip through especially if he's poor and has a handwritten petition which isn't the most coherent it could be.

  • Bob from Ohio||

    "wrongful convictions—i.e., convictions of factually innocent defendants"

    Because of the burden of proof, we do not decide innocence in a criminal proceeding.

    The fact that doubt has been raised subsequent to conviction does not mean they were not innocent.

  • Smooth Like a Rhapsody||

    This is an important point.
    "Probably guilty" == "Not guilty": assuming the machine works properly.

  • apedad||

    Also Not Guilty does not mean Innocent.

  • James Pollock||

    "Because of the burden of proof, we do not decide innocence in a criminal proceeding."

    Except of course, for those criminal proceedings where we do.

    Such as, for example, in post-conviction hearings for relief because of actual innocence. Also in clemency proceedings.

  • Bob from Ohio||

    "Also in clemency proceedings."

    That is not remotely true. Clemency is at the discretion of the executive [plus a review board in some states]. Guilty people get clemency all the time.

  • James Pollock||

    " Clemency is at the discretion of the executive"

    Yeah, that settles it. The decision is in the hands of the executive, so they can't possibly determine if anyone's innocent.

  • DWB||

    Yeah ... no.

    I wouldn't be surprised if it was close to 10% -- American government doesn't do anything very well.

  • Smooth Like a Rhapsody||

    Don't confuse your Google search and conversations at the local tavern with our law degrees.
    Virtually every person who gets charged is guilty of a criminal act. And the vast majority of those are guilty of exactly what they are charged with.

  • Hank8||

    Whatever the true probability is, it certainly isn't uniform across all trials. "Just Mercy" by Bryan Stevenson goes into a number of cases where race was more important than the truth.

  • Smooth Like a Rhapsody||

    Like in the case of the Gentle Giant...?

  • bernard11||

    Plugging guesses into a formula doesn't make the result accurate. It makes it worse than the original guesses.

    There are two other flaws I consider worth mentioning.

    1. Cassell wants to include in his determination of the error rate trials where the question of factual innocence does not arise. That looks wrong to me. You can't give the system credit for correctly answering a question which wasn't asked. We want to know is how often does the system err when faced with the possibility of factual innocence. If that's not at issue you can't say, it got it right.

    2. Cassell argues that improved procedures in recent years have reduced false conviction rates. In this he has touching faith in the integrity of prosecutors. After all, it does seem that a fair number of false convictions involve some degree of prosecutorial misconduct, or at least obstinacy. Consider the case of Nicholas Yarris, convicted in 1982. According to the paper:

    After Yarris was convicted, he began an effort to obtain DNA testing of the
    evidence.140 In 2003, Dr. Edward Blake conducted retesting of the evidence,... Yarris was excluded from all
    biological material connected with the crime.

    Only 21 years!!

    Cassell concludes from this that:

    if the Yarris case were to unfold today, DNA testing would be
    readily available to the police and prosecution at the outset. And Yarris would thus
    be excluded as a possible perpetrator,

    Not exactly well-supported.

  • Rev. Arthur L. Kirkland||

    For those striving to understand how this content appears at an ostensibly libertarian website, under a blog masthead that declares "Often libertarian" but omits an reference to conservatism: This is a polemical movement conservative blog dominated by the work of faux libertarians.

    A few Conspirators, such as the national security correspondent, reject unconvincing libertarian drag and instead, to their credit, acknowledge their oft-authoritarian movement conservatism.

    One Conspirator, Prof. Somin, is largely a libertarian, which is why his contributions infuriate most Conspiracy fans and are readily distinguishable from the other content of this blog.

  • bernard11||

    Plugging guesses into a formula doesn't make the result accurate. It makes it worse than the original guesses.

    There are two flaws I consider worth mentioning.

    1. Cassell wants to include in his determination of the error rate trials where the question of factual innocence does not arise. That looks wrong to me. You can't give the system credit for correctly answering a question which wasn't asked. We want to know is how often does the system err when faced with the possibility of factual innocence. If that's not at issue you can't say, it got it right.

    2. Cassell argues that improved procedures in recent years have reduced false conviction rates. In this he has touching faith in the integrity of prosecutors. After all, it does seem that a fair number of false convictions involve some degree of prosecutorial misconduct, or at least obstinacy. Consider the case of Nicholas Yarris, convicted in 1982. According to the paper:

    After Yarris was convicted, he began an effort to obtain DNA testing of the
    evidence.140 In 2003, Dr. Edward Blake conducted retesting of the evidence,... Yarris was excluded from all
    biological material connected with the crime.

    Only 21 years!!

    Cassell concludes from this that:

    if the Yarris case were to unfold today, DNA testing would be
    readily available to the police and prosecution at the outset. And Yarris would thus
    be excluded as a possible perpetrator,

    Not exactly supported by the facts.

  • Paul Cassell||

    With regard to Yarris, I'm not sure exactly what you mean. If the same case were to arise today, DNA testing would be done as a matter of course -- and the DNA would "exclude" Yarris as the perpetrator. Back when the crime was committed, DNA testing was not available as a matter of course. So if the Yarris case were to arise to today, a wrongful conviction would not occur, whereas given the technology that was available back when the crime was committed, a wrongful conviction did occur.

  • bernard11||

    What I mean is this.

    Yes, an honest system would do that, with the results you predict.

    But DNA testing was available well before 2003 - maybe a decide earlier, when Yarris finally got his request fulfilled. An honest system would have done it earlier.

    More broadly, there are lots of examples of prosecutors simply refusing to test DNA evidence, withholding other exculpatory evidence, and generally putting getting convictions ahead of accuracy. Ever heard of Harry Connick? Lovely decision by the conservative bloc on the Court.

  • Michael Ejercito||

    Harry Connick starred in Independence Day

  • bernard11||

    I'm talking about Connick Sr., a New Orleans DA with, shall we say, a dubious history.

  • Intelligent Mr Toad||

    By "convicted", do you mean found guilty at trial, or, are you including defendants who plead guilty to crimes they did not actually commit, in order to avoid the trial penalty?

  • Eddy||

    Justice Scalia, making the perfectly defensible point that the death penalty is constitutional, chose the case of Henry Lee McCollum to illustrate the dreadful nature of many capital crimes:

    "...the case of the 11-year old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, No. 93-7200, cert. now pending before the Court. How enviable a quiet death by lethal injection compared with that!"

    It later turned out that Henry Lee McCollum was one of those supposedly vanishingly-small cases where the convicted person didn't do it (McCollum's half-brother was also convicted and got a life sentence - he was exonerated too).

    What are the chances that in looking for a specific example of a dreadful murder, a Supreme Court justice would pick one where they wrong guys got convicted?

  • Bob from Ohio||

    They found a cigarette butt near the scene. Despite the subsequent vacation, it does not mean either McCollum was "innocent". The alleged "real" perp lived a block away meaning the butt could have been left there anytime.

    The original prosecution had a witness and a confession.

    The cigarette probably means the state could not meet its burden of proof so the prosecutor decided not to waste resources, they had already spent a long time in prison. Not that he was "exonerated".

    Everybody says their confession was "coerced" by the way.

  • Eddy||

    That neighbor who left the cigarette also committed similar crimes, making it look like more than dropping his cigarette while asking the neighbors to borrow a cup of sugar.

  • Eddy||

    The governor (a Republican) later granted a pardon on the grounds of innocence.

  • Bob from Ohio||

    So? Trump pardoned Sheriff Arpaio for "selfless public service". Pardons are issued for all sorts of reasons.

  • James Pollock||

    You don't see any irony in tossing out Trump's actions as typical, do you?

  • Bob from Ohio||

    Executives issue pardons for their own reasons.

    Clinton pardoned Marc Rich. Not for either "innocence" or "public service".

  • Eddy||

    Well, Trump and Arpaio were political allies.

    What about a convicted murderer and the Republican governor of NC?

  • Bob from Ohio||

    I neither know nor care what the reason was. Our system allows mercy by the executive, it does not empower the executive to determine "innocence".

  • Eddy||

    What, exactly, is a governor supposed to do, then, faced with proof that an innocent man is sitting in prison?

    Or in this case, getting denied compensation?

  • MatthewSlyfield||

    In states where there is no automatic restoration of the rights (voting/gun ownership) that are typically denied to convicted felons after they have completed their full sentence including parole/probation the pardon process is primarily used as a method of restoring those rights for those who have accepted responsibility and shown remorse and rehabilitation and there is a strong bias, if not an official policy, against considering clemency requests based on claims of innocence.

  • Eddy||

    "there is a strong bias, if not an official policy, against considering clemency requests based on claims of innocence."

    Then it's all the more significant that McCollum actually got one of those rare pardons based on innocence.

  • James Pollock||

    " it does not empower the executive to determine "innocence"."

    Yeah, it sure does. What it doesn't do is REQUIRE such a finding.

  • James Pollock||

    "Everybody says their confession was 'coerced' by the way."

    Some guy named Warren said that any interrogation while in custody is coercive.

  • Bob from Ohio||

    Warren also thought locking up Japanese Americans was a good idea.

  • bernard11||

    So if someone has one bad idea that makes all their ideas bad?

  • SIV||

    "but he built the Autobahn"

  • Sarcastr0||

    And highways are not a bad idea.

    QED.

  • eyesay||

    Professor Cassell, I kind of speed-read or skimmed your paper in the Arizona Law Review. I didn't pay close attention to most details. I didn't notice any discussion on how the error rate might vary from jurisdiction to jurisdiction. It believe that some prosecutors are extremely scrupulous and careful, and others positively dishonest, and where the prosecutor is unscrupulous and dishonest, the error rate is going to be much higher. And probably there are localities where the jury pool is "hanging" and others where the jury pool is "skeptical". Where the pool is "hanging" there will be more false convictions; where the jury pool is "skeptical" there will be more errors of failed convictions. Was any of this considered? Also, did you submit your paper to a statistician for a review and critique?

  • phoqueue||

    Summary: Cassell very narrowly defines "wrongful conviction" such that all he really cares about is whether the defendant was present when something bad happened. Silly things like self-defense, intent, and the elements of crimes and defenses are irrelevant. Those go to "legal innocence" beyond the scope of his article, which is 40 pages of assumptions and extrapolations. He then concludes that the legal system is pretty good at identifying people who were merely present when something bad happened.

  • Paul Cassell||

    Hi Phoequeue -- In focusing on "factual innocence" as opposed to "legal" innocence, I followed a long tradition in the scholarship on this subject. See notes 14-18 and accompanying text (collecting literature adopting a similar approach). Of course, Professor Thomas (who has the following article paired with mine) adopts the same approach. While this approach makes issues such as self-defense irrelevant to these particular articles, I certainly don't mean to suggest that those issues are unimportant (and Thomas and others writing in this area have said similar things).

  • Jerry N||

    The findings published by Paul Cassell certainly are at odds with the famous report of the Innocence Project:

    "In more than 25% of cases in a National Institute of Justice study, suspects were excluded once DNA testing was conducted during the criminal investigation (the study, conducted in 1995, included 10,060 cases where testing was performed by FBI labs)."

  • Purple Martin||

    The usefulness of a study purposefully limited to a population of those convicted then formally/legally achieving full exoneration seems...limited. Given those limits, the extremely low rates of 'actual innocence' are predictable.

    But a full investigation of "How often are innocent persons convicted?" must necessarily make an honest attempt to address the subject of people convicted (through either plea bargain or trial), not formally exonerated, yet still not guilty of the crime. It seems certain that number would be above zero and, given the vagaries of our legal system, not unlikely that the actual number of such people might exceed the number formally exonerated.

    This would certainly be a much more difficult study but in its absence Prof Cassell seems more like the drunk looking for his lost car keys only under the streetlight because the light is better there.

  • Purple Martin||

    How might such a study be conducted? Would probably have to start with a suitably large random sample of convictions spread across multiple jurisdictions representing varying conditions.

    A large enough sample would presumably include a number of cases falling within Prof Cassell's range of "0.016% and 0.062." So record those, then begin an effort to provide a close examination--comparable to the effort of those conducted by The Innocence Project--of every remaining case within the sample.

    Record the number of additional instances with a reasonable case for lack of 'certainty beyond a reasonable doubt' and update the innocence rate (call it "Likely Innocence Rate" to address its greater amount of uncertainty versus the formal exoneration rate).

    Would that rate be equal to or higher than the 1% to 4% the professor states is a commonly presented number? Such a number (and perhaps higher) seems likely to me, though I assume it would seem unlikely to Professor Cassell. But in the absence of a more diligent study (which, given the level of effort needed, I grant is probably unrealistic), we are both simply making a guess while working from an equal basis of knowledge.

    But only one of us has the professor's motivation to come up with with some kind of academic support for a proposition he's been arguing for his entire career.

  • yoyo||

    Can we discuss something important - not exactly the main thrust of this post...? Is it possible for (a) an innocent person to be convicted yet (b) justice to have been done? I.e., as far as the process was concerned everything was honky dory - evidence submitted was procedurally fine, etc. Yet person was innocent. Isn't that justice? I believe I've heard the distinction between procedural justice and substantive justice. And perhaps that would be a case of procedural but not substantive justice. But isn't there such a thing as justice tout court? And can't one ask whether that is a situation where justice tout court is or isn't instantiated? Big questions for a Friday!

  • Purple Martin||

    yoyo, I'm not certain I understand you question. And as far as I understand it, it seems to require an alternative definition of the word, Justice.

    Otherwise it seems a non-sequitur to remove the issue of "factual innocence" from the issue of Justice.

  • yoyo||

    I asked several questions. Did you not understand any of them?

  • Purple Martin||

    If you notice, my comment is reasonably applicable to all your questions. So what's your base assumption as to the definition of "Justice" ??

    Or are you using multiple definitions, each chosen to fit a specific instance? I understand your words but I'm not sure I understand what kind of answers you'd be satisfied with.

  • JonFrum||

    I read the first paper overnight. Browsing the comments, it's obvious that many (most?) of the commenters didn't read the paper before questioning/criticizing it. This is an internet thing - very few people ever follow the link before bloviating. I was skeptical about quantifying false convictions, but after reading the argument, I'm more sanguine about getting a ballpark figure, and certainly about getting a better number than is current in the literature.

    Always follow the link first - then comment.

  • Ilya Shlyakhter||

    Multiplied by the total number of convictions, that's still a high number of people wrongfully jailed. Numbers like 0.5% may look small, but in human terms, do we accept this number of innocents jailed in our name?

  • Smooth Like a Rhapsody||

    It's more like 0.05%. Read the numbers again.
    And, yes, we are willing to accept a level of error in the realm; just like we don't fire or sue a doctor everytime someone dies.
    Human institutions are fallible.

  • Eric Rasmusen||

    I haven't read the article itself, but equally important is the wrongful non-conviction rate. How many people commit the crime type in question and are not convicted? And, for court purposes, how many arrests are made for the crime type and wrongfully released?

    Yet another number of interest would be how many of those convicted suffer any punishment in the form of jail time or fines or community service. Maybe it's most of them; I don't know. This should include pre-trial detention. And, to be fair, we should think about how many of those who are ACQUITTED serve pre-trial detention, and how many of those are innocent and guilty.

    Lots of good stuff to study!

  • JonFrum||

    In over 100 comments, it seems as if no one else noticed that the third article - found by the link words 'my reply' - is not linked to there. It IS linked to later in the author's discussion.


    So in other words, you knuckleheads were commenting on something you didn't fully read. That there is standard internet.

  • James Pollock||

    "So in other words, you knuckleheads were commenting on something you didn't fully read."

    I don't recall claiming that I read every word of every linked document on the Internet. Do you understand how World Wide Web documents work?

  • Michael Cook||

    My anecdotal purely subjective opinion from escorting defendants to pre-trial hearings and plea bargain negotiations for 20 years is that the rate of coerced "confessions" by innocents is as high as 10%. By that I mean that people are being wrongfully convicted of much more than they actually did, or even of things they completely were not involved in.

    The pressure on over-charged individuals is pretty enormous. Of course, that reality doesn't bother the genuine career criminal very much at all because they know how the system works and they work it. The novices and the genuinely innocent, however, really can be blindsided and overwhelmed.

    Over the years I developed considerable sympathy for their plight, especially when we came through the steel door and I saw who was at the prosecutor's table.

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