Dudley Sharp, a death penalty advocate and founder of Justice Matters, said anti-death penalty activists inflate the number of innocence claims to create a sense of urgency to pass the bills.
"How much of an innocence problem do we really have in this state?" Sharp said. "Before we do legislation, I would like to have identified how much of a problem this is, really?"He said innocence advocates do not separate the number of actually innocent exonerees — meaning they had no connection to the crime - and those who are released based on a legal technicality or error.
Ellis' bill to require police to record interrogations also raises concerns about what evidence prosecutors will be allowed to use in court, Sharp said.
"Sometimes it's a lot easier to get a confession from somebody at the scene or right when you arrest them, where they're emotional, they'll waive their rights, and they'll confess," he said. "There has to be a provision whereby all of that stuff can still come in, and a judge can weigh the credibility of allowing it into trial. You can't just exclude them."
Similarly, Sharp wonders aloud, "How much of an innocence problem do we really have in this state? ... Before we do legislation, I would like to have identified how much of a problem this is, really?" But this is a question that can actually be answered, or at least reasonably estimated. So, since the Chronicle didn't take up the task, let's run through the various available estimates.
For starters, the Chron notes, there have been 42 DNA exonerations where biological evidence tested years after convictions proved (to the satisfaction of the courts, at least) that the convictions should be overturned based on actual innocence. Keep in mind, though, that a) biological evidence only exists in 10% of violent crimes, and b) most agencies have thrown away or failed to test potentially exonerating evidence. So those 42 cases represent essentially a microsample of a much-larger pool of innocent people convicted where DNA either doesn't exist or was never tested.
In 41 of Texas DNA exonerations, innocent men walked of prison; in the other, Timothy Cole, who died while incarcerated, was exonerated posthumously. Half those cases (21) came out of Dallas. So to reach a back-of-the-envelope estimate, here's the current breakdown of DNA exonerations:
- Dallas: 21
- Rest of State: 21
- Dallas: 210
- Rest of State: 210
- Dallas: 210
- Rest of State: 2,100
- Total: 2,310 innocent people in prison or recently exonerated
Josh Marquis of the National District and County Attorneys Association used his own back-of-the-napkin methodology to estimate an actual innocence rate of .75%, which would be about 1,200 prisoners currently incarcerated in Texas. Looking at the rate of Texas death row exonerations and applying it to the whole prison population would get you around 2,400 innocent prisoners. Applying other innocence rates estimated from various sources to Texas' large prison population gets estimates as high as 3,500 to 5,000 innocent prisoners out of those currently incarcerated.
All of these estimates, I've argued, may understate the false conviction rate by excluding drug war cases. And whatever rate one decides is fair to apply to the prison population, the rate among probationers is likely a little higher because of the incentive innocent people have to take a deal to avoid incarceration.
These false convictions are happening for specific, often repetitive reasons: The most attention has been focused on the failure by police to use best practices for eyewitness identification, but there are a litany of other contributing factors (which regular readers could likely recite) like mendacious informants, goal-oriented forensics, false confessions, and occasionally even police and prosecutor misconduct. On some of these topics, the Texas Lege may take a few baby steps this year, as with Ellis' "Innocence Protection Package," but by no means will these much-compromised bills solve the problem.
So yes, 42 DNA exonerations in Texas are a serious concern. But what's outright alarming is that these men represent just a handful out of hundreds or likely even thousands of other innocent people sitting in Texas prisons who modern technology cannot liberate.
Dudley Sharp wants to deflect debate on innocence legislation into a simplistic up or down vote on the death penalty, even though hardly any of Texas' DNA exonerees came from death row. These bills are instead about those hundreds or thousands of innocent non-death row prisoners, and the future thousands who should never end up in prison in the first place if the system can weed them out before a wrongful conviction ever occurs.