How many more are innocent? America's 250th DNA exoneration raises questions about how often we send the wrong person to prison.

AuthorBalko, Radley
PositionColumn

FREDDIE PEACOCK of Rochester, New York, was convicted of rape in 1976. This year he became the 250th person to be exonerated by DNA testing since the technique was first used in 1989. According to a new report by the Innocence Project, those 250 prisoners served a total of 3,160 years; 17 spent time on death row. Remarkably, 67 percent of them were convicted after 2000, a decade after the onset of modern DNA testing. The glaring question: How many more are there?

Calculating the percentage of innocents now in prison is a tricky and controversial thing to do. The certainty of DNA testing means we can be positive the 250 defendants listed in the Innocence Project report didn't commit the crimes for which they were convicted. But there are hundreds of other cases in which convictions have been overturned due to a lack of evidence, recantation of eyewitness testimony, or police or prosecutorial misconduct, and where no DNA evidence exists to definitively establish guilt or innocence. Those were wrongful convictions because there wasn't sufficient evidence to overcome reasonable doubt, but we can't be sure all of the accused were actually innocent.

Most prosecutors fight requests for post-conviction DNA testing. That means the discovery of wrongful convictions is limited by the time and resources available to the Innocence Project and similar legal aid organizations who fight for tests in court. It's notable that in one of the few jurisdictions where the district attorney is actively seeking out wrongful convictions--Dallas County, Texas--the county by itself has seen more exonerations than all but a handful of individual states. If prosecutors in other jurisdictions were to follow Dallas County District Attorney Craig Watkins' lead, that 250 number would be significantly higher.

Still, some officials aren't impressed. One of the more farcical attempts to underplay the growing number of DNA exonerations came in a concurring opinion that Supreme Court Justice Antonin Scalia wrote in the 2005 case Kansas v. Marsh. Scalia began by dismissing the idea that an innocent person may have ever been executed in America, explaining that if such a tragedy had occurred, "we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby."

Since then the abolition lobby has been shouting about Cameron Todd Willingham, the probably innocent man who was executed in Texas in 2004. But Scalia's argument also betrays a...

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