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Analysis

Wrongful Convictions

Why they happen, and why they can be so hard to fix.

October 5, 2018

“Our proced­ure has been always haunted by the ghost of the inno­cent man convicted. It is an unreal dream.”

Judge Learned Hand, United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923)

Nearly a century after Judge Hand dismissed it as an impossib­il­ity, we know that wrong­ful convic­tions are not “ghost[s]” at all. Moviespodcasts, and books all show that our crim­inal justice system can lead to the unjust incar­cer­a­tion of an inno­cent person. 

It’s easy to dismiss these cases — the Pres­id­ent of the United States certainly does — but they are not isol­ated incid­ents. The National Registry of Exon­er­a­tions has docu­mented more than 2,100 wrong­ful convic­tions. Each case hides a massive human toll: Even when uncovered, wrong­ful convic­tions take years or decades to correct. 

How do these injustices happen in the first place? And how do they go uncor­rec­ted? 

Anatomy of a Wrong­ful Convic­tion

Accord­ing to the Inno­cence Project, mistaken iden­ti­fic­a­tion is a major contrib­ut­ing factor to wrong­ful convic­tions. Cross-racial iden­ti­fic­a­tions are espe­cially prob­lem­atic. Witnesses often miss subtle factors that distin­guish between members of another race. For the wrong­fully accused, those missed subtleties can be the differ­ence between guilt and inno­cence.  

Prosec­utorial miscon­duct is another factor. A 1963 Supreme Court case, Brady v. Mary­land, requires prosec­utors to share with defense attor­neys any evid­ence that under­mines their case. Fail­ing to do so is a seri­ous ethical breach. But not all lawyers comply, and miscon­duct by police makes it even harder. 

Prob­lems can also happen on the defense side. Public defend­ers, who repres­ent people who can’t afford to hire their own attor­ney, suffer from crip­pling case­loads and chronic under­fund­ing. That can make them less effect­ive. The result is that lower-income people often don’t receive the vigor­ous defense they deserve. In a very real sense, these people cannot afford justice. 

Policies that trap people in jail — like money bail — also contrib­ute to wrong­ful convic­tions. Some people have also been known to plead guilty to a crime they did not commit rather than wait in jail for their day in court. 

Right­ing the Wrongs

Once a wrong­ful convic­tion has occurred, it can be surpris­ingly diffi­cult to fix. 

Anyone convicted of a crime can appeal — that is, ask another judge to take a second look at their case. But most judges will only inter­vene if specific consti­tu­tional rights were viol­ated during trial. And surpris­ingly, the convic­tion of an inno­cent man through an other­wise “fair” trial does not viol­ate the U.S. Consti­tu­tion.[1] As the Supreme Court wrote in a 1993 case, Herrera v. Collins, once someone “has been afforded a fair trial and convicted . . . the consti­tu­tional presump­tion of inno­cence disap­pears.” Some states offer greater protec­tion to their citizens: In 2014, a New York court allowed people convicted under its laws to protest their inno­cence in court.[2] But this right to protest someone’s “actual inno­cence” remains revolu­tion­ary and rare.

Another recent innov­a­tion is the “Convic­tion Integ­rity Unit” (“CRU”): a team of prosec­utors set up inside a district attor­ney’s office, tasked with re-invest­ig­at­ing their colleagues’ cases. These units hear claims of inno­cence from incar­cer­ated people, review them in depth, and, where warran­ted, use the DA’s author­ity to correct injustices. CRUs gained popular­ity thanks to Barry Scheck of the Inno­cence Project and were pion­eered in Brook­lynDallas, and Manhat­tan. Brook­lyn’s CRU helped uncover wrong­do­ing by a key detect­ive, inspir­ing a (short-lived) TV show. CRUs don’t always help the defend­ant, though — some­times they conclude that the convic­tion should stand

Even when someone is found inno­cent, it’s not always easy to put your life back together after years in prison. The best way to correct wrong­ful convic­tions is to build a system that prevents them alto­gether.