Exonerations in the United States 1989 through 2003.

• Author: Gross, Samuel R.

On August 14, 1989, the Cook County Circuit Court in Chicago, Illinois, vacated Gary Dotson's 1979 rape conviction and dismissed the charges. (1) Mr. Dotson--who had spent ten years in and out of prison and on parole for this conviction--was not the first innocent prisoner to be exonerated and released in America. But his case was a breakthrough nonetheless: he was the first who was cleared by DNA identification technology. It was the beginning of a revolution in the American criminal justice system. Until then, exonerations of falsely convicted defendants were seen as aberrational. Since 1989, these once-rare events have become disturbingly commonplace.

This is a report on a study of exonerations in the United States from 1989 through 2003. We discuss all exonerations that we have been able to locate that occurred in that fifteen-year period, and that resulted from investigations into the particular cases of the exonerated individuals. Overall, we found 340 exonerations, 327 men and 13 women; (2) 144 of them were cleared by DNA evidence, 196 by other means. With a handful of exceptions, they had been in prison for years. More than half had served terms of ten years or more; 80% had been imprisoned for at least five years. As a group, they had spent more than 3400 years in prison for crimes for which they should never have been convicted--an average of more than ten years each. (3)

As we use the term, "exoneration" is an official act declaring a defendant not guilty of a crime for which he or she had previously been convicted. The exonerations we have studied occurred in four ways: (1) In forty-two cases governors (or other appropriate executive officers) issued pardons based on evidence of the defendants' innocence. (2) In 263 cases criminal charges were dismissed by courts after new evidence of innocence emerged, such as DNA. (3) In thirty-one cases the defendants were acquitted at a retrial on the basis of evidence that they had no role in the crimes for which they were originally convicted. (4) (4) In four cases, states posthumously acknowledged the innocence of defendants who had already died in prison: Frank Lee Smith, exonerated in Florida in 2000; Louis Greco and Henry Tameleo, exonerated in Massachusetts in 2002; and John Jeffers, exonerated in Indiana in 2002. (5)

This is the most comprehensive compilation of exonerations available, (6) but it is not exhaustive. The criminal justice system in the United States is notoriously fragmented--it is administered by fifty separate states (plus the federal government and the District of Columbia) and by more than 3000 separate counties, with thousands of administratively separate trial courts and prosecuting authorities. There is no national registry of exonerations, or any simple way to tell from official records which dismissals, pardons, etc., are based on innocence. As a result, we learned about many of the cases in our database from media reports. But the media inevitably miss some cases--and we, no doubt, have missed some cases that were reported. (7)

In the great majority of these cases there was, at the end of the day, no dispute about the innocence of the exonerated defendants. This is not surprising. Our legal system places great weight on the finality of criminal convictions. Courts and prosecutors are exceedingly reluctant to reverse judgments or reconsider closed cases; when they do--and it's rare--it's usually because of a compelling showing of error. Even so, some state officials continue to express doubts about the innocence of exonerated defendants, sometimes in the face of extraordinary evidence. Two brief examples:

When Charles Fain was exonerated by DNA in Idaho in 2001, after eighteen years on death row for a rape murder, the original prosecutor in the case said, "It doesn't really change my opinion that much that Fain's guilty." (8) On December 8, 1995, at the request of the prosecution, the DuPage County, Illinois, Circuit Court dismissed all charges against Alejandro Hernandez, who had spent eleven and one-half years in prison for an abduction, rape and murder in which he had no role. By that time DNA tests and a confession had established that the real criminal was an imprisoned serial rapist and murderer by the name of Brian Dugan; a police officer who provided crucial evidence had admitted to perjury; and Hernandez's codefendant, Rolando Cruz, was acquitted by a judge who was harshly critical of the investigation and prosecution of the case. Nonetheless, when Hernandez was released, the prosecutor said: "The action I have taken today is neither a vindication nor an acquittal of the defendant." (9) Needless to say, we are in no position to reach an independent judgment on the factual innocence of each defendant in our data. That is not our purpose in this report. Instead, we look at overall patterns in the exonerations that have accumulated in the past fifteen years and hope to learn something about the causes of false convictions, and about the operation of our criminal justice system in general. It is possible that a few of the hundreds of exonerated defendants we have studied were involved in the crimes for which they were convicted, despite our efforts to exclude such cases. On the other hand, it is certain--this is the clearest implication of our study--that many defendants who are not on this list, no doubt thousands, have been falsely convicted of serious crimes but have not been exonerated.

1. EXONERATIONS OVER TIME

   The rate of exonerations has increased sharply over the fifteen-year period of this study, from an average of twelve a year from 1989 through 1994, to an average of forty-two a year since 2000. The highest yearly total was forty-four, in 2002 and again in 2003. See Figure 1. (10)

   [FIGURE 1 OMITTED]

   The number of DNA exonerations has increased across this period, from one or two a year in 1989 to 1991, to an average of six a year from 1992 through 1995, to an average of twenty a year since 2000. Non-DNA exonerations were less rare initially, and remained relatively stable through the 1990s, averaging about ten a year. Their numbers have increased rapidly in the last several years, averaging twenty-three a year since 2000.

   This rapid increase in reported exonerations probably reflects the combined effects of three interrelated trends. First, the growing availability and sophistication of DNA identification technology has, of course, produced an increase in DNA exonerations over time. Second, the singular importance of the DNA revolution has made exonerations increasingly newsworthy; as a result, we are probably aware of a higher proportion of the exonerations that occurred in 2003 than in 1989. And third, this increase in attention has in turn led to a substantial increase in the number of false convictions that in fact do come to light and end in exonerations, by DNA or other means. More resources are devoted to the problem--there are now, for example, forty-one Innocence Projects in thirty-one states (11)--and judges, prosecutors, defense lawyers, and police officers have all become more aware of the danger of false convictions.

2. THE CRIMES FOR WHICH EXONERATED DEFENDANTS WERE CONVICTED

   Ninety-six percent of the known exonerations of individual defendants since 1989 were either for murder--60% (205/345) (12)--or for rape or sexual assault--36% (121/340). Most of the remaining fourteen cases were crimes of violence--six robberies, two attempted murders, a kidnapping and an assault-plus a larceny, a gun possession case and two drug cases. (13) See Table 1.

   This highly skewed distribution tells us a great deal about the relationship between exonerations--those erroneous convictions that are discovered and remedied, at least in part--and the larger group of all false convictions, the vast majority of which are never discovered. We consider that relationship by examining the two major categories of crimes for which exonerations are comparatively common.

3. THE RELATIONSHIP BETWEEN KNOWN EXONERATIONS AND ALL FALSE CONVICTIONS

   1. WHY DO SO MANY EXONERATIONS INVOLVE RAPE?

      At the end of 2001, about 118,000 prisoners in state prisons were serving sentences for rape and sexual assault, less than 10% of the total prison population. There were also over 155,000 prisoners who had been convicted of robbery, nearly 119,000 who were in prison for assault, more than 27,000 for other violent felonies, and over 600,000 for property, drug and public order offenses. (14) Why are 90% of the exonerations for non-homicidal crimes concentrated among the rape cases?

      The comparison between rape and robbery is particularly telling. Robbery and rape are both crimes of violence in which the perpetrator is often a stranger to the victim. As a result, robberies and rapes alike are susceptible to the well-known dangers of eyewitness misidentification. In fact, there is every reason to believe that misidentifications in robberies outnumber those in rapes, by a lot:

      (1) Robberies are more numerous than rapes. In 2002, for example, the FBI estimates that 95,136 forcible rapes and 420,637 robberies were reported to police departments in the United States, leading to 20,126 arrests for rape and 77,342 arrests for robbery. (15)

      (2) Eyewitness misidentification is almost entirely restricted to crimes committed by strangers, which includes about three quarters of robberies, but only a third of rapes. (16)

      (3) The nature of the crime of rape is such that the victim usually spends a considerable amount of time in close physical proximity to the criminal; robberies are frequently quick, and may involve less immediate physical contact.

      In 1987, a detailed study analyzed all known cases of eyewitness misidentification in the United States from 1900 through 1983, 136 in all. (17) That study found that misidentifications in robberies outnumbered those in rapes by more than two to one; in fact, robberies accounted for more than half of all known...