The Growing Problem Of Wrongful Conviction

Published on – April 15, 2003

The Independent Review

|Volume 7,
Number 4
, [PDF]

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

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

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 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 white-collar victim,
a prosecutor need only interpret an arcane regulation
differently or with a new slant.

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

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 free 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


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.

conviction is on the rise because the protections
against it have been eroded by the pursuit of
devils—drug dealers, child molesters, environmental
polluters, white-collar criminals, and terrorists—all of
whom must be rounded up at all cost. In doing so, we
have done what Sir Thomas More

warns against
in the play
A Man for All

we have cut a
great swath in the law.

called the legal principles that made the law a shield
“the Rights of Englishmen.” These rights include due
process, the attorney-client privilege, equality before
the law, the right to confront adverse witnesses, and
the prohibitions against crimes without intent, bills of
attainder, self-incrimination, retroactive law, and
attacks against a person through his property. Each of
these principles has been breached. Today prosecutors
create bills of attainder by tailoring novel
interpretations of law to fit the targeted defendant. A
favorite tactic is to criminalize civil infractions, as
in the Charles Keating savings-and-loan case (Roberts
and Stratton 2000, 51–54). Clark Clifford and Robert
Altman were indicted not for a statutory violation but
on a prosecutor`s “novel theory” that two separate legal
transactions comprised a “conspiracy” (Roberts and
Stratton 2000, 54–60). Even accidents and mistakes in
filling out government forms have been criminalized, as
in the Exxon Valdez and Benjamin Lacy cases (“Bad
Apples” 1996, A12; Boot 1995, A14; Roberts and Stratton
2000, 50, 60–61). The ancient principle of mens rea—no
crime without intent—has been obliterated.

The New Deal
made its own contribution to wrongful conviction. An
important feature of much New Deal legislation was
congressional delegation of law-making power to
regulatory agencies. Delegation combined statutory
authority and enforcement authority in the same hands.
The bureaucrats` ability to define criminal offenses by
their interpretation of the regulations that they write
gives regulatory police vast discretion. A cooperative
“offender” may get off with a civil penalty, whereas a
person who sticks up for his rights or a person who
presents a high-profile opportunity to an ambitious
prosecutor may receive a criminal indictment. The
bureaucrats` ability to create criminal offenses
spontaneously by interpretation makes law uncertain and
renders it unable to fulfill its purpose of commanding
what is right and prohibiting what is wrong.

In 1990, U.S.
assistant attorney general Stuart M. Gerson expressed
Bentham`s belief about the proper function of lawyers
when he indicted the blue-chip law firm Kaye, Scholer as
“an abettor of crime” for not divulging to thrift
regulators information pertaining to its client Charles
Keating and his Lincoln Savings and Loan (Roberts and
Stratton 2000, 107–10). The Justice Department`s
indictment ignored the fact that Keating`s crime had not
been established at the time of the law firm`s

In 1996,
federal district judge John G. Davies overturned
Keating`s later conviction as a violation of mens rea
and the constitutional prohibition of ex post facto law

(Keating v. Hood),

but Kaye,
Scholer still suffered the loss of the $41 million it
paid to settle the Justice Department`s indictment.

The Justice
Department coerced the law firm into that settlement by
freezing its assets and its four hundred partners`
personal assets (Roberts and Stratton 2000, 107). Many
prominent legal authorities regard the government`s
action as illegal, but Kaye, Scholer, unable to meet its
payroll or pay its bills, was powerless to resist the
coercion. Not even a prominent law firm can hold the
Justice Department accountable if its assets and those
of its partners are frozen. Prosecutors enjoy an
enormous degree of immunity from prosecution and civil
lawsuit even when their unlawful and improper actions
are exposed.

asset-freeze and forfeiture laws were intended to be
applied to mobsters and drug dealers. However, the laws`
application was quickly expanded. The majority of people
whose assets are confiscated are innocent property
owners. In 80 percent of forfeitures, no charges are
filed against the owners of confiscated property (Levy
1996, 127). For law enforcement agencies, the forfeiture
laws have created an off-budget funding source beyond
the control of legislators. In 1990, a Justice
Department memo for U.S. attorneys

: “Every effort must be made to increase
forfeiture income during the remaining months of 1990”
(Roberts and Stratton 2000, 126; see also Miniter 1993,
33). House judiciary committee chairman Henry Hyde
warned that the forfeiture laws target property, not
crime. The result, he said, is that Americans face
“endless possibilities to be caught in the snare of
government forfeiture” (Hyde 1995, 10).

Every area of
law reflects widespread disregard for the “Rights of
Englishmen.” Superfund law takes retroactive law back
generations and places liability on people and
organizations that never contributed an ounce of
hazardous waste to a Superfund site (Roberts and
Stratton 2000, 70–81). In child abuse cases, due process
and the right to confront one`s accusers do not exist.
Anonymous allegations serve as grounds for seizing
children and placing them in the hands of “therapists”
who coax them into accusations (Lyon 1998; Roberts and
Stratton 2000, 144). The Justice Department and the
Housing and Urban Development Department have coerced
neighborhoods that are legally using local zoning
ordinances to keep out commercially operated halfway
houses and drug-treatment clinics into abandoning their
right to equal standing under the law (Roberts and
Stratton 2000, 113–21).

The law as
Blackstone understood it has been lost. Formerly,
prosecutorial behavior was regulated by conscience and
by the carefully inculcated ethic that the prosecutor`s
duty is to serve justice by finding the truth. The
purpose of a trial was to weigh the evidence for and
against the defendant, not to convict him at any cost. A
prosecutor`s career and self-esteem did not depend on
his conviction rate. A prosecutor who suborned perjury
or withheld exculpatory evidence in order to win a case
was regarded as a shameful figure and an embarrassment
to the law.

Crowded court
dockets (springing in large part from the conservatives`
war on drugs), bureaucracy, budgetary pressures, and
careerism have contributed to elevating ambition above
justice. The emergence of moral causes or ends that
justify the means, such as “saving our children from
drugs” and “making environmental polluters pay,” has
contributed greatly to the breakdown of prosecutorial
restraint. Today a prosecutor who gives the defendant
the benefit of the doubt is regarded as a failure.
Robert Merkel, a U.S. attorney during 1982–88, says that
prosecution “is a result-oriented process today,
fairness be damned” (Moushey
1998, 3). Merkle says prosecutors are pressured to
justify budgets with convictions, “and that causes them
to prosecute absolutely bogus cases to get those
statistics” (Moushey 1998, 4). In 1998, former deputy
U.S. attorney general Arnold I. Burns wrote in the
Wall Street Journal
that “it is
time for a sober reassessment of the power we have
concentrated in the hands of prosecutors and the
alarming absence of effective checks and balances to
prevent the widespread abuse of that power” (A23). A law
school textbook,

now in its
second edition (Gershman 1991), is evidence that the

is not going away on its own.

prosecutors have the same interest as defendants in the
integrity of the criminal justice system. It is in their
interest that withholding exculpatory evidence not
become routine and that suborned perjury not become the
only evidence in a case. Juries alone are not a
deterrent. Juries are often unaware that the witness
giving incriminating testimony not only has been
rehearsed in the role but also has been paid by the
prosecutor with money or reduced prison time or dropped

In 1998, the

Pittsburgh Post-Gazette

summed up its
investigative reports of prosecutorial misconduct as

hundreds of
times during the past 10 years, federal agents and
prosecutors have pursued justice by breaking the law.
They lied, hid evidence, distorted facts, engaged in
cover-ups, paid for perjury and set-up innocent people
in a relentless effort to win indictments, guilty pleas
and convictions. Rarely were these federal officials
punished for their misconduct. . . . Perjury has become
the coin of the realm in federal law enforcement.
People`s homes are invaded because of lies. People are
arrested because of lies. People go to prison because of
lies. People stay in prison because of lies, and bad
guys go free because of lies. (Moushey
, 40)

A new practice
known as “jumping on the bus” has taken the
prosecutorial ethic to the rock-bottom depth. Informants
sell information on unsolved cases to an inmate, or
prosecutors and federal agents feed this material to an
inmate. The inmate memorizes the case, thereby seeming
to have inside knowledge when he comes forward with
information to trade in exchange for a reduced sentence.
In the absence of evidence, this practice is used
sometimes against a person only believed to be guilty.
Sometimes it is used to close unsolved cases, and
sometimes it occurs at an inmate`s initiative. Formerly,
self-serving accusations by criminals were treated only
as leads to be investigated. If the leads proved
helpful, evidence still had to be marshaled. Today the
accusation is the evidence. Thus, the criminal element
itself has a big say in who goes to prison.

Weak and
fabricated evidence suffices because seldom is it tested
in court. According to the Justice Department, only
approximately one case in twenty goes to trial; the rest
are settled with pleas (Maguire and Pastore 1995,
461–63, 483–86). Conservatives believe that the problem
with plea bargaining is that it permits criminals to get
off too lightly, thus undermining the deterrent effect
of punishment. However, the problem with plea bargains
is far more serious.

Plea bargains
have corrupted the justice system by creating fictional
crimes in place of real ones. The practice of having
people admit to what did not happen in order to avoid
charges for what did happen creates a legal culture that
elevates fiction over truth. By making the facts of the
case malleable, plea bargains enable prosecutors to
supplement weak evidence with psychological pressure.
Legal scholar John Langbein compares “the modern
American plea bargaining system” with “the ancient
system of judicial torture” (1978, 8). Many innocent
people cop a plea just to end their ordeal. Confession
and self-incrimination have replaced the jury trial.
Just as Bentham wanted, torture has been resurrected as
a principal method of conviction. As this legal culture
now operates, it permits prosecutors to bring charges in
the absence of crimes.

bargaining is a major cause of wrongful conviction.
First, plea bargains undermine police investigative
work. Because few cases go to trial, police have learned
that their evidence is seldom tested in the courtroom.
Carelessness creeps in. Sloppy investigations are less
likely to lead to apprehension of the guilty party.
Second, plea bargaining greatly increases the number of
cases that can be prosecuted. Prosecutors have found
that they can coerce a plea and elevate their conviction
rate by raising the number and seriousness of the
charges that they throw at a defendant. Counsel advises
defendants that conviction at trial on even one charge
can carry more severe punishment than a plea to a lesser
charge. The sentencing differential alone is enough to
make plea bargaining coercive.

A circularity
of reasoning justifies plea bargaining. Without plea
bargaining, the argument goes, the courts would not be
able to handle the caseload. This argument is
unconvincing. The obvious solution is to create enough
courts to handle the case-load or to reduce the caseload
by eliminating victimless crimes, such as drug
possession and trumped-up charges based on regulatory
interpretation. Without the war on drugs, asset
forfeiture, and months-long court disputes over the
meaning of a lengthy arcane regulation, there would be
enough courts and judges to handle the serious crimes.

Every law,
regulation, or reform has unintended consequences. A
case can be made that the exclusionary rule changed the
culture of the criminal justice system and led to the
coerced plea bargain. By releasing criminals known to be
guilty, the exclusionary rule turned the criminal
justice system into a lottery for police, prosecutors,
and criminals alike. The result was demoralized
prosecutors who began to see in the plea bargain a way
to game the system back toward conviction. The
unintended consequence of the exclusionary rule was
cultural change. The criminal justice system
deemphasized pursuit of the truth and focused on
convicting the defendant.

Once we
understand that the law has been lost, it is easy to
understand why there are innocents on death row. As
important as it is to get these innocents off death row,
new victims of the system can be put there faster than
innocence projects can rescue them. Moreover, the
preoccupation with capital offenses and with cases in
which DNA evidence can resolve the doubt about innocence
leaves the vast majority of wrongfully convicted persons
without a prayer.

To make a dent
in wrongful conviction, we must rethink the approach.
Innocence projects and law professors who find injustice
a burden on the conscience can work to reestablish the
inculcation of the ethic in law school, an ethic so well
expressed by George Sutherland
v. U.S.

and Robert Jackson (1940): that the prosecutor`s duty is
to see that justice is done, not to win convictions. If
the law schools can be carried, so can the bar
association and the journalism schools. Stories about
wrongful prosecution should become a media priority.

Law schools
must deal as well with the Benthamite influences that
have eroded the “Rights of Englishmen” and have made law
a weapon in the hands of government. If Benthamite
collectivism, aided by deconstructionism and cultural
Marxism, has undermined the legal principles that
protect individuals from government power, nothing can
be done about wrongful conviction until the Blackstonian
principles are restored.

against wrongful conviction also requires a return to
constitutionalism. To many lawyers, “constitutional
protection” means the granting of protected minority
status by a federal judge. If antipathy to guns is more
important that the Second Amendment, offense to
preferred minorities more important than the First
Amendment, and race and gender quotas more important
than equality before the law, it is little wonder that a
prosecutor`s conviction rate is more important than a
fair trial and that justice plays second fiddle to
clearing the court docket.

It is often
said that Americans live under the rule of law. It is
closer to the truth to say that Americans live under the
rule of regulators. Theodore Lowi (1979) has argued that
accountable law in the United States ceased seventy
years ago with the delegation of law-making power to the
executive branch in violation of the principle that a
delegated power cannot itself be delegated. The people
delegated law-making power to Congress, where under our
system of government it must reside forever. First,
however, law must be put back in the hands of Congress,
an unlikely event when government is so large that it
involves itself in every aspect of life. It is just as
unlikely that trials will take the place of plea
bargains as long as so many laws create so many crimes,
and so few resources are devoted to courts and trials.

The problem of
wrongful conviction is much larger than many of its
antagonists appreciate. We will spin our wheels
expending vast energies in freeing a few innocent
people, and we must do what we can. But we also must
gird for battle and restore the lost law. Once the
“Rights of Englishmen” are no longer even a memory,
justice will be gone as well.

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