Thursday, January 15, 2009

Estimating false convictions: Thousands of Texas prisoners are likely innocent

The string of DNA exonerations witnessed in recent years has made everyone in the justice system aware that more innocent people are convicted of crimes than anyone previously thought. But what percentage of total convictions are false ones?

This is a difficult question because it's hard to find an accurate denominator for comparison.

Nobody thinks every innocent person has been identified through DNA testing, and indeed no biological evidence exists to test in the vast majority of criminal cases. So even though we know 39 Texans have been exonerated by DNA, we don't know what percentage of criminal convictions overall are false.

One of the few datasets that generates a statistically viable denominator comes from capital murder cases, for which a new study from Michigan State provides a new, national calculation:
Among defendants sentenced to death in the United States since 1973, at least 2.3 percent—and possibly more—were falsely convicted, said U-M law professor Samuel Gross in a study co-authored by Barbara O'Brien, a professor at Michigan State University College of Law.

If defendants who were sentenced to prison had been freed because of innocence at the same rate as those who were sentenced to death, there would have been nearly 87,000 non-death row exonerations in the United States from 1989 through 2003, rather than the 266 that were reported, the study said.

"The main thing we can safely conclude from exonerations of falsely convicted defendants is that there are many other false convictions that we have not discovered," said Gross, whose research has focused on the death penalty, false convictions and eyewitness identification.

Since 1989, nearly all exonerations in the United States fall into three categories: rape convictions, because of post-conviction DNA testing; murder convictions, and especially death sentences, which are subjected to much more detailed post-conviction reinvestigation than other convictions; and a few groups of false drug and gun possession convictions that were produced by concerted programs of police perjury that later unraveled.

As result, researchers know little about false convictions among crimes of violence other than murder or rape, even though false convictions for robbery could greatly outnumber those for rape and murder. And researchers know next to nothing about false convictions for other types of crimes, such as property crimes, misdemeanors and white collar crimes.
The exoneration rate in Texas for capital murder convictions is slightly lower than in this national study.

Another dataset that lends itself to statistically valid innocence estimates come from DNA exonerations. In Texas, 3.3% of cases solved by DNA evidence resulted in exonerating convicted defendants.

So let's guess that the false conviction rate in Texas is somewhere between 2.3-3.3%: With around 155,000 prisoners, that would mean between 3,500 and 5,000 or so current Texas prison inmates were falsely convicted.

Another 10-15,000 falsely convicted people are on the probation rolls, this data implies - perhaps even more since innocent people may be more likely to accept a plea for probation than risk incarceration for something they didn't do.

That's a helluva lot of folks.


Anonymous said...

Good morning Scott. Do you remember how many people were put to death even though the DNA was tainted?

Gritsforbreakfast said...

I don't know about that, 9:10. There has never been, to my knowledge, a posthumous DNA exoneration, in part because after execution nobody preserves old biological evidence.

The most compelling innocence claim I'm aware of on behalf of an executed defendant was the Cameron Willingham case, but that wasn't based on DNA evidence.

Anonymous said...

Most of them are guilty of something.

You don't go to prison the first time.

Anonymous said...

rentabem..what does that statement "you don't go to prison the first time" mean? If most of them are guilty of something then I would suppose you are to...just haven't been caught yet, huh?

Thanks for this post, Scott. Wish some of those people who don't believe in a persons innocence could spend a decade or so inside a Texas prison. Imagine being locked up at a young age for a crime you didn't commit. No money for an attorney and few good attorneys who will fight for them even if they had money. I would suspect the vast majority of innocent prisoners in Texas at this time are labeled sex offenders. A disgruntled woman, an angry wife or a young child who gets taught at the local elementary school how to destroy a life would probably be the culprits in this travesty of justice. Add to that some hot shot assistant DA running for DA and you have a recipe for conviction. Don't forget the court apponted attorney who could care less about actually defending the guy because, let's face it, what attorney who is trying to build a reputation wants to be the one who defended and won the case of a terrible predator.

Look into the eyes of an innocent man condemned on nothing but the word of a woman or child and then tell me about justice in Texas. It should make every citizen in this state sick.

Anonymous said...

Ms. Lincoln - you are so correct. Why would we want anyone in prison especially innocent people? Perhaps the only crimes for which prison is suitable are those of a violent nature. It is shameful that the USA, the land of the free, has more people in prison than any other COUNTRY IN THE WORLD. That is pathetic. Get the innocent OUT of our prisons. Yes, there was a case of execution and a refusal to do the DNA test (wonder why - fear the man was innocent?) Our legislature should concentrate on reducing the # of laws which require imprisonment for non-violent crimes or those which only affect the individual defendant. And let us not start putting people in jail for debts - we are in a serious economic situation and we cannot let jailing people enter into the equation.

Anonymous said...

Unfortunately, Cheri is correct. Many men are in Texas prisons for sexual assaults that never happened based on stories generated by angry or attention seeking women. It is very sad.

It makes me sick to think about those people who have spent years on death row and then were executed knowing all the while they were innocent. I can not imagine what that must feel like. It is the reason this once strong proponent of the death penalty is very much against it now.

Anonymous said...

Beverly (Blaha) Lanfear
Co-founder, TAJLR

(I have many articles and resources I am posting on our website in our forums under the topic "False Allegations." There are so many reasons why innocent people are being convicted and incarcerated. The average ordinary citizen will NEVER know this until it's too late. The lack of knowledge will destroy us all. Gritsforbreakfast I cannot thank enough for posting issues concerning False Convictions.)

You can find excellent resources at the link below on "Wrongful Convictions". The number reason: Mistaken ID.

I can give you a story about mistaken ID, yet no body better could tell than my oldest son. We were told these cases were weak. Wrong, wrong, wrong. What I can say is my son no doubt is one of the luckiest young men alive....the real perpetrator was caught 3 weeks before his trial.

The link: Washington And Lee Law School - Students for an Innocent Project

Wrongful Convictions
The Wrongful Convictions class at Washington and Lee School of Law examines the principal causes of wrongful convictions and possible measures to prevent or remedy them.

Anonymous said...

What concerns me, beyond the obvious fact that convicting innocent people isn't nice, is that the system is so prone to other catastrophic error - mentally ill people being convicted even when patently incompetent (don't believe me? Have a look at a San Antonio case called Shane Greene - it's on the 4th court of appeals website). And sentencing errors such as the one that locked up Michael Haley (see the US Supreme Court case of Dretke v. Haley) for years beyond the proper term - and when that error came to light the state tried to keep him locked up, even though they admitted the sentence was illegal, because of procedural problems with the way he had raised the claim.

The court system has to keep functioning, because otherwise we would live in total chaos, but the present system - especially the lack of a properly trained and funded defense bar, and the knowledge of most prosecutors that they can get away with anything - is close to chaos in its arbitrariness.

Anonymous said...

Good post, Scott. Thanks for the information.
I would note that there is a reason to believe, for reasons Death Penalty Abolitionists have been noting for decades, that wrongful convictions for capital crimes or rape may be slightly higher than convictions for noncapital crimes. Capital crimes are usually based in horrendous facts, inflame jurors' need for retribution, often have the greatest disparity between the resources and preparation of each party's counsel,etc. Some of those effects are certainly possible in noncapital crimes, but appear in a much smaller degree.
"Innocence" is also more difficult to measure in some circumstances. Maybe that guy wasn't involved in the consipracy to sell meth, but decided one time to buy a greater-than-user-quantity to support his drug habit. Guilty of kilos and kilos? No. Guilty, as one commentor put it, "of something"? Yes. So your statistic of 3% wrongful conviction may be accurate, but if you consider what the defendant _may_ have been charged with, and could have been convicted of, then the number is murkier. (I wish I could have taken the Washington & Lee class about wrongful convictions!)

Then you raise plea bargaining. It is certainly a matter of debate as to whether it is right (or moral) for a defendant to plead guilty to a crime he didn't commit, but, assuming that the defendant made that decision knowingly and voluntarily considering all the evidence, it would be difficult for me to say that conviction is "false."

However, even if you cut your numbers down by 1/2 (not unreasonable with the premises I've discussed), that's still thousands of wrongful convictions, and it's frightening.

Anonymous said...

I tried contacting criminal defense attorney's (through e-mails) quoting what my son's attorney told us, "Innocent people get arrested everyday; innocent people are convicted everyday; as a matter of fact 25% of the people in Texas that are convicted are in fact innocent.” I asked them if they agreed with the percentage. A few said yes, some said they felt it was definitely higher. Just as many laws are no longer written on reason (based on emotion) people are being convicted on emotions not reason. The plea bargain system is out of control. Google “The Plea”, a documentary done in 2005 by PBS. Overzealous prosecution doesn’t help. There are many Nifongs out there. Until we put accountability back in our courts thousands upon thousands innocent lives are at stake. Who on earth allowed Judges, Attorney’s and law enforcement to be exempt from accountability???? Do you think having an 80 page court transcript that PROVES beyond a reasonable doubt of the shoddy police investigation could help you regain your fifty thousand dollar losses? Do you think 3 years later the officer head of the investigation (not the one that actually did the investigation) admits to an ex federal judge that your son should have never been arrested would help you get the justice for your son? Absolutely not! Until we can hold these people accountable for violating their oaths our prisons will continue to be riddled with innocent people.