The causes of wrongful conviction.

• Author: Roberts, Paul Craig
• Position: Reflections

The execution of an innocent person cannot be remedied. This fact, together with mounting evidence of innocents on death row, has strengthened opposition to the death penalty. Nevertheless, the death penalty has proved to be a divisive issue. The divide between liberals and conservatives on the death penalty could be bridged by changing the emphasis in the issue to wrongful conviction.

Many people support the death penalty from a sense of justice. The same sense of justice would cause them to oppose wrongful conviction. The injustice lies in the wrongful conviction, not in the penalty. A wrongfully convicted person who loses good name, family, and career or who suffers a life sentence of prison rape and execution by AIDS deserves our concern as much as the innocent on death row.

Abolishing the death penalty might worsen the problem of wrongful conviction. Death penalty cases receive far more scrutiny than other criminal cases. If police and prosecutors cannot identify and convict the guilty party in capital crime cases, where evidence and procedures are more closely examined, what must be the rate of wrongful conviction for less-serious crimes, especially those for which conviction is obtained by plea bargain? Abolishing the death penalty might reduce the attention given to the issue of wrongful conviction in general.

Most of the scrutiny given to death penalty cases is a search for legal error. It is much more difficult to detect suborned perjury and the suppression of exculpatory evidence because they are not in the legal record. Nevertheless, innocence projects and people convinced of a convicted person's innocence do sometimes succeed in bringing to light prosecutorial misconduct that secured the conviction. DNA evidence has been especially productive of success in overturning wrongful convictions based on junk science, false testimony, and mistaken identity.

A consensus against wrongful conviction is hampered by ideology that portrays wrongful conviction as a racially motivated phenomenon or as the operational result of "the white male hegemonic order." Wrongful conviction is too widespread and serious a problem to be politicized. In fact, inner-city black juries are more suspicious of cases brought by police and prosecutors than are white suburban juries. If it were not for coercive plea bargains, inner-city blacks would face a lower risk of wrongful conviction than whites. The focus on racial bias cloaks the real problem of prosecutorial misconduct.

The older Marxist view that justice is a function of the size of the pocketbook--the rich get it and the poor don't--has no credibility in our time of asset freezes and prosecutors in search of high-profile cases. Vast sums of money could not protect Michael Milken and Leona Helmsley from wrongful conviction, nor did money protect Exxon, Michael Zinn (Zinn 1999), Charles Keating (Keating v. Hood 1996), and the law firm of Kaye, Scholer, Fierman, Hays & Handler (Roberts and Stratton 2000).

It is easier to frame a white-collar defendant than to frame a poor member of a minority group. The common-law crimes associated with the poor--theft, assault, murder--are well defined. Frame-ups for such crimes require prosecutors to suborn perjury, suppress exculpatory evidence, and coerce false confession. To frame a whitecollar victim, a prosecutor need only interpret an arcane regulation differently or with a new slant.

Politicizing wrongful conviction as a manifestation of racial or class prejudice does not serve the cause of justice. In our time of asset freezes, asset forfeitures, coercive plea bargains, and budget-driven conviction rates, as well as the demise of the prosecutorial ethic and the erosion of what William Blackstone ([1765-69] 1979) called "the Rights of Englishmen," no one is safe.

The Causes of Wrongful Conviction

In this article, I am focusing on the causes of wrongful conviction. Correcting the problem will require both changing the incentives that police and prosecutors face and resurrecting the belief that the function of justice is to find the truth. Procedural and evidentiary reforms--such as those suggested by Barry Scheck, Peter Neufeld, and Jim Dwyer (2000, 255-60)--would reduce the rate of wrongful conviction. However, such reforms alone cannot remedy the inroads that a Benthamite view of law has made on the Blackstonian view. Blackstone conceived of law as the people's shield. It is better, he said, for ten guilty men to go frec than for one innocent man to be convicted. In contrast, Bentham viewed the law as a weapon the government wields to punish criminals or anyone else in the name of the greatest good for the greatest number. He believed in rounding up people who might commit crimes. He wanted to restore torture to aid in securing convictions, and he believed that a defendant's lawyer had an obligation to aid the prosecution.

Wrongful conviction is on the rise because the protections against it have been...