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Innocents convicted: an empirically justified factual wrongful conviction rate.
That would make the error rate [in felony convictions] .027 percent--or, to put it another way, a success rate of 99.973 percent.
--Justice Antonin Scalia. concurring in Kansas v. Marsh, June 26, 2006 (quoting Joshua Marquis). (1) I. INTRODUCTION The news about the astounding accuracy of felony convictions in the United States, delivered by Justice Scalia and Joshua Marquis in the passage set out epigrammatically above, would be cause for rejoicing if it were true. Imagine. Only 27 factually wrong felony convictions out of every 100,000! Unfortunately, it is not true, as the empirical data analyzed in Part III of this article show. Part IV then deals with the impact of an empirically derived factual innocence rate (2) for at least one important category of real world criminal convictions (capital rape-murders in the 1980s) on various participants in current debates on both the death penalty and the problem of convicting the factually innocent generally. Part V examines the problem of generalizing the factual innocence rate from capital rape-murder convictions in the 1980s to other times and other crimes. Part VI provides a lens through which to view the moral and policy implications of such a factual innocence rate. But first, some historical context: II. PALEYITES AND ROMILLISTS People who think about the problem of wrongful conviction often fall into two camps, which we might label Paleyites and Romillists. Paleyites, whom I have named after the early exponent of this position, the 18th-century proto-utilitarian the Rev. William Paley, believe that, even though it is wrong to convict an innocent person, such convictions not only are inevitable in a human system, but represent the necessary social price of maintaining sufficient criminal law enforcement to provide an appropriate level of security for the public in general. Hence, one should not be moved by the prospect of wrongful conviction to take actions that would reduce such convictions, no matter how common, at the cost of reducing convictions of the guilty to a dysfunctional level. (3) Paleyites tend to be conservative, in the sense that any changes to current ways of conducting the criminal justice process, proposed for their supposed effect on protecting the innocent, will be presumed so counterproductive in their effect on convicting the guilty that they will be opposed. Romillists, whom I have named after the early 19th-century reformist Sir Samuel Romilly, have such a horror of convicting the innocent that they are willing to propose many changes to whatever system exists, on the ground that such changes in our way of criminal law enforcement will better protect the innocent. (4) In so doing, it may be that some of the proposals might make the conviction of the truly guilty more difficult, perhaps significantly so. Whatever the actual effect, the Paleyites can be counted on to find the potential effect abhorrent, and to label the proponents "soft-headed sentimentalists" or some similar characterization, while the Romillists in turn will label the Paleyites hard-hearted troglodytes, indifferent to the plight of the convicted innocent, with knee jerk opposition to reform. What neither side has a good handle on, however, is the magnitude of the problem of factually wrongful conviction and wrongful acquittal. Partly this is due to the inherent difficulty of establishing the ground truth of factual guilt or innocence better than the trials (or plea bargains) that resulted originally in acquittals or convictions. But, at least with regard to convictions, it is also partly due to the fact the legal system is structured to operate as if it were controlled by Paleyites, whatever the personal beliefs of individual participants. This is the result of rather extreme doctrines intended to uphold the integrity and finality of the results of criminal trials. (5) Nevertheless, both post-conviction legal doctrines and those who administer them, prosecutors and judges alike, resist new evidence of innocence to such a degree that it often passes the bounds of rationality. (6) And what but the word "concealment," albeit in the name of protecting the public legitimacy of the system, can explain the efforts undertaken to oppose DNA testing in regard to those already executed, where such DNA testing would conclusively establish guilt or innocence in fact. (7) Traditionally, a certain stripe of Paleyite has also denied that wrongful convictions happen at all, or, that if they happen, they happen so rarely that worrying about them is like worrying about being struck by a meteorite. (8) The reasons assigned for this assumed near-perfection in regard to false-positive error have generally been the numerous layers of filtration involved in the pre-trial system, and the general fairness of the adversary trial itself, with its formal requirement that the prosecution prove guilt beyond a reasonable doubt. (9) Such a position is very difficult to take in ...See the full content of this document
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