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OpEdNews Op Eds    H3'ed 2/19/13

The Falsely Convicted Spend Years In Jail Before Exonerations, And They Are the Lucky Ones.

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When someone is accused of a crime they are guaranteed certain protections by the US Constitution.  They are presumed innocent, have a right to examine evidence against them, have a right to a jury of their peers and so forth. The judicial protections to prevent false convictions are extensive and quite specific. The whole system is supposed to be optimized to prevent false convictions of the innocent even if it means some guilty persons might go unpunished.  But after a person is convicted and sentenced, their rights to have that conviction overturned when proof of their innocence is later uncovered is not well defined in law. 

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The following is my abridged summary of a recent report on criminal exonerations in the United States.  This summary is an attempt to provide a quick overview of the findings in the report and raise awareness about this issue.  I encourage everyone to download the report and read it in detail.  You cannot get the full impact of this work from this abridged version.
Exonerations in the United States, 1989 -- 2012
Report by the National Registry of Exonerations

May, 2012

This is the first Report from the National Registry of Exonerations, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law.  The Registry can be found at It includes detailed information on the 873 individual exonerations in the United States from January, 1989, through the end of February, 2012.
 "Exoneration," as we use the term, is a legal concept. It means that a defendant who was  convicted of a crime was later relieved of all legal consequences of that conviction through a decision by a prosecutor, a governor or a court, after new evidence of his or her innocence was discovered. As you will see in this report, the number of exonerations in the United States is not a good measure of how often our justice system produces false convictions.  The full report also contains wrenching examples of truly innocent people falsely caught up in the system.
  • The procedure for convicting a defendant of a crime is set by law: unless the defendant pleads guilty, he must be convicted at a trial before a judge or a jury by proof beyond a reasonable doubt.
  • There is no set legal procedure for deciding that a convicted defendant is innocent when subsequent proof of innocent surfaces.
  • Persons convicted of a crime can appeal but
    • Appeals are mostly based on some misapplication of law at trial
    • New evidence cannot be presented to win a chance to appeal
    • Accuracy of the trial court's judgment is not reviewed
    • Winning an appeal triggers a new trial, not an exoneration
  • Most exonerated defendants have their convictions vacated by courts at some point, but that almost always occurs in some form of "collateral review" or "extraordinary relief" proceeding after the process of ordinary appellate review has run its course, which can take years.
All told, we know of 873 individual exonerations from January 1989 through February 2012. For these exonerees:
-          93% were men (816/873) and 7% were women (57/873).10
  • We know the race of the defendants in 92% of the cases (802/873):
    • 50% were black (399/802),
    • 38% were white (303/802),
    • 11% were Hispanic (86/802), and
    • 2% were Native American or Asian (14/802).
  • 8% pled guilty (71/873) and the rest were convicted at trial -- 87% by juries and 8% by judges.
  • 37% were cleared at least in part with the help of DNA evidence (325/873).
  • 63% were cleared without DNA evidence (548/873).
  • Almost all had been in prison for years; half for at least 10 years; more than 75% for at least 5 years.
  • As a group, the defendants had spent more than 10,000 years in prison for crimes for which they should not have been convicted -- an average of more than 11 years each
As a procedural matter, these exonerations occurred in several ways; in some cases, in more than one way:
113 Pardons: Governors issued pardons based on evidence of the defendants' innocence.  In 41 cases of defendants whose charges had previously been dismissed, and three who had been acquitted on retrial by a jury or a judge.
673 Dismissals: Criminal charges were dismissed by courts, generally on motion by the prosecution, after new evidence of innocence emerged.
76 Acquittals: Defendants were acquitted on retrial on the basis of newly presented evidence that they were not guilty.
11 Certificates of Innocence: In a small number of cases courts have issued "certificates of innocence," "declarations of wrongful imprisonment," or similar judgments of innocence. 
10 Posthumous Exonerations: Ten defendants received posthumous exonerations; two of them also received a judicial declaration of innocence.
The 2003 Report divided the exonerations it listed into four crime categories: Murder  (including a few manslaughter convictions),  Rape  (including other sexual assaults),  Other Crimes of Violence , and  Drug and Property Crimes .30 In Table 1 we compare the cases in the 2003 Report and those in the National Registry, using those classifications.
Exonerations by Category of Crime
1989 -- 2003 REPORT 1989 -- 2012 REPORT Murder (including manslaughter) 60% (205) 48% (416) Rape (and other sexual assaults) 36% (121) 35% (305)
Adult Victims  
30% (103) 23% (203)
Minor Victims
5% (18) 12% (102) Other Crimes of Violence 3% (11) 11% (94) Drug and Property Crimes 1% (3) 7% (58) TOTAL 100% (340) 100% (873) 

The overall average is 11.9 years from conviction to exoneration, 13.0 years from arrest. The range varies greatly. Exoneration generally takes long when the crime is more serious.
Time to Exoneration: All Crimes (Five-Year Moving Average)
Black defendants are heavily overrepresented among exonerees: they are heavily overrepresented among those arrested and imprisoned for violent crimes and drug crimes. But the disproportions we see are greater than what one would expect. In 2000, for example, 46% of state and federal prisoners were black; in 2008, that  proportion was 38%.42Using either bench mark, black exonerees, at 50%, are somewhat overrepresented among all exonerees -- but this disparity is unevenly distributed. In 2008, 43% of homicide prisoners were black,43 only slightly fewer than the 49% of homicide exonerees who were black. For robbery, the difference is greater: 52% of prisoners and 64% of exonerees were black; for drug crimes, 45% of prisoners and 60% of exonerees were black (but the number of cases is small). Finally, for sexual assault, the difference is huge: 25% of prisoners, but 63% of exonerees were black.
The 873 exonerations in the Registry come from 43 states, the District of Columbia, the  Commonwealth of Puerto Rico, 19 federal districts, and the military. They are very unevenly distributed by state, and especially when broke down by county. This suggests we are missing many cases -- both innocent defendants from jurisdictions where exonerations are vanishingly rare, and exonerated defendants whose cases have received little or no public attention.  Two-thirds of all exonerations occur in just 10 states. In the most recent report, Excluding Federal cases, the top 10 states account for 64% of all exonerations. They are: 
1. Illinois              101
2. New York           88
3. Texas                 84
4. California           79
5. Michigan            35
6. Louisiana           34
7  Florida                32
8. Ohio                     28
9. Massachusetts  27
10. Pennsylvania   27

There is a well-known list of factors that are associated with exonerations: eyewitness  misidentification, false confession, perjury, false or misleading forensic evidence, official  misconduct.  More than one factor may be present in a false conviction.  For all exonerations, the most common causal factors are perjury or false accusation (51%), mistaken eyewitness identification (43%), and official misconduct (42%).  For 104 exonerations, our information includes clear evidence of severely inadequate legal defense, but we believe that many more of the exonerated defendants -- perhaps a clear majority -- would not have been convicted in the first instance if their lawyers had done good work.
CONCLUSIONS (In full from this report)
The most important thing we know about false convictions is that they happen and on a regular basis. We don't know how often they occur or what types of cases are most common. Most false convictions never see the light of day. We know only about the rare ones that are discovered and corrected (at least in part) by exoneration -- and we miss many cases in which innocent defendants are exonerated, probably most. We do know that the more we look, the more exonerations we find, and the more varied they are.
The most important goal of the criminal justice system is accuracy: to identify and condemn the guilty, and to clear the innocent. The most effective way to do so is by careful, honest and open minded work before conviction, in the investigation and prosecution of criminal charges.
The next most important task is to remain open minded after conviction about the possibility of error. The overwhelming majority of convicted defendants are guilty. Most never dispute their guilt and few ever present substantial post-conviction evidence of innocence. When that does happen, however, it should be taken seriously. We know of many exonerated defendants who were imprisoned for years, even decades after they presented strong evidence of their innocence.  We cannot prevent all false convictions, but we must not compound these tragedies by stubbornness or arrogance or, worst of all, indifference.
The National Registry of Exonerations is the largest database of its kind ever assembled. We have already learned a great deal from it. In particular, it is now clear that false convictions are not one sort of problem but several, and that the solutions that might prevent them vary drastically from one context to another: For homicides, the biggest problem is perjury and false accusation, most often by supposed eyewitnesses, with official misconduct a close second. False convictions in adult rape cases, on the other hand, are primarily based on eyewitness mistakes -- more often than not, mistakes by white victims falsely identifying black defendants. Most false convictions in child sex abuse cases, by contrast, are for fabricated crimes that never occurred, and so forth.   We will learn more as the Registry matures and we gather data about a larger number of  exonerations across a wider range of settings. The more we learn about false convictions the better able we will be to prevent them, or failing that, to identify and correct them after the fact.
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Brian Lynch is a retired social worker who worked in the areas of adult mental health and child protection for many years. His work brought him into direct contact with all the major social issues of the day and many of our basic social (more...)

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