It is frequently said that a civilized people would rather let ten guilty men go free than put one innocent person in prison. I would revise the ratio, myself, yet we are starting to get a glimpse into just how often innocent people are convicted in this country.
Damon Thibodeaux is the 300th convict exonerated through DNA evidence. He is an innocent man who was threatened and intimidated into giving a false confession that never withstood a cursory comparison to the facts. Not only was he innocent, but one of the crimes to which he confessedsexual abuseappears never to have happened to the murder victim.
These releases have blown a hole in the myth that the justice system almost never damns the innocent. Some would suggest that the return of these individuals freedom shows the system is workingyet for years they have been deprived of their birthright of liberty, and rarely ever receive restitution . Moreover, many more remain imprisoned and are likely never to be released.
Thibodeauxs ordeal reminds us that even when the facts appear to clearly prove the prosecutions case, behind-the-scenes criminal justice shenanigans often obscure the picture seen by jurors. The Washington Post reports that among exonerations in the last five years, as many as a quarter of the cases involved a false confession. This might shock Americans who have never learned about the way police interrogators can psychologically manipulate suspects, breaking them down hour by hour, until the suspects no longer have any conception of reality or identity.
Research out of the University of Michigan indicates a 2.5 percent to 4 percent error rate in capital cases. And in June, researchers examining biological evidence from hundreds of Virginia rape convictions between 1973 and 1987 determined that new DNA testing appeared to exonerate convicted defendants in 8 percent to 15 percent of cases.
This means that for the 140,000 on death row or serving life imprisonment alone, many thousands of innocent individuals could be in prison for crimes they didnt commit. In some categories of offenses, it would seem the U.S. is getting awfully close to an error rate that would mean letting everyone out of prison would satisfy the moral standard that imprisoning an innocent person is worse than letting ten guilty people go. This sounds crazy, but that is the degree of injustice our system has wrought.
Unfortunately, most innocent people will probably never be released, since the vast majority of cases resulting in DNA-based exoneration involve rape where there is DNA evidence to test. There are many more cases in which confessions and eyewitness testimonytwo notoriously unreliable forms of proofare the main ways prosecutors secure convictions. Compounded by the highly problematic reliance on plea bargains, and we see how things can get so awful.
It is almost a certainty that thousands of innocent Americans are behind bars, potentially subject to brutal conditions, violence, and very often rape. This of course does not even touch on those who are punished for peaceful acts that should not be crimes in a free societylike drug or gun ownership or illegal immigrationnor does it take account of the many property criminals who would be more humanely and justly handled through restitution to their victims rather than imprisonment; nor does it consider the hundreds of thousands imprisoned on petty parole and probation violations where no one was actually hurt. Maybe if the criminal justice system were only focused on violent crime, it could better ensure that fewer innocents were locked up, but even this would require eternal vigilance on the part of the people.
Despite the criminal justice system comprising one outrageous injustice mounted atop another, this gets very little attention in mainstream discourse. Why?
Perhaps it is because this reality poses a major inconvenience for the dominant forms of modern political ideology. The progressives believe government is more humane and efficient than the market, and if a system of checks and balances, due process protections, and unanimous jury verdicts has failed so utterly in protecting the rights of the innocent, it only demonstrates why we might not trust it with running education, protecting the environment, or guaranteeing health care to all. Modern conservatives, on the other hand, believe that, while government deserves suspicion in the areas of welfare and regulation, the criminal justice system is a proper role of government and that liberal criticisms have served to coddle criminals and weaken the states ability to protect the people from crime. Thus, they trust government with the unparalleled powers of execution and imprisonment where they would distrust it to run the economy or care for the needy. Yet on all fronts, government deserves much less trust, not more.
It is no wonder that almost any other issue is more likely to be discussed in the national debates than the horrible state of our criminal justice system. Countless innocent people are being abused and have had their lives stolen from them by overzealous prosecutors and police, biased judges, and jurors willing to give the state the benefit of the doubt. This one of the greatest injustices in modern American life and exposes the immoralities in pro-government ideologies that have come to dominate modern politics.
So long as this is the system we have, jurors concerned with actual justice need to become far more vigilant. The presumption of evidence means that prosecutors and police should not be given the benefit of the doubt, as they typically are. Independent Institute Senior Fellow Robert Higgss rule of thumb is: whenever any government functionary, especially one connected with the so-called criminal justice system, makes a statement, presume that it is a lie. It may not be, of course, but unless overwhelming independent evidence is adduced in support of it, the odds are that it is a lie.
This might seem cynical, but that is the proper attitude with which to approach the legal system. Only a principled skepticism can possibly keep the system functioning anywhere close to the ideal, where people are treated as innocent until proven guilty.
|Anthony Gregory is a Research Fellow at the Independent Institute and the author of American Surveillance: Intelligence, Privacy, and the Fourth Amendment (University of Wisconsin Press for the Independent Institute). His previous book, The Power of Habeas Corpus in America: From the King's Prerogative to the War on Terror, won the 2013 PROSE Award for Best Book in Law and Legal Studies.|
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