Monday, September 14, 2009

'Texas criminal justice system has major flaws': Estimating innocent people in prison

The title of this post is the headline to a Corpus Christi Caller Times editorial reacting to the slew of recent DNA exonerations in Texas as well as the Cameron Willingham case. The sentiments expressed, it seem to me, represent a growing consensus that Texas justice continues to suffer from serious problems.

Despite the alarmist headline, though, it struck me that some readers of the editorial and other news coverage of innocence cases may be inclined to minimize the problem evidenced by 38 DNA exonerations and one falsely convicted man who was executed.

To understand the scope of the actual innocence problem one must put these numbers in context. I've written frequently about efforts to estimate statistical rates of actual innocence in Texas, but let's try and get at the numbers another way.

According to the Caller Times, there have been 38 Texas DNA exonerations. (You hear counts of 40 or higher including more recent exonerees, but the Innocence Project doesn't include them as exonerated until the Court of Criminal Appeals finally clears their name.)

But 20 of those 38 have come out of Dallas, with just 18 in the rest of the state. That's not because Dallas had a worse problem than other jurisdictions, necessarily, but because Dallas kept old rape kits from past decades and virtually nobody else did.

What's more, DNA evidence only exists in about 10% of violent crimes in the first place, so in many cases where innocent people have been falsely convicted, there's simply no exonerating forensic evidence available.

So to reach a back-of-the-envelope estimate, here's the current breakdown of innocence cases:
  • Dallas: 20
  • Rest of State: 18
Since DNA evidence is only available in 10% of violent crimes, let's assume that innocent people among those 90% cannot be exonerated by DNA and remain in prison. That would bring the total of convicted innocents exonerated and in prison to:
  • Dallas: 20o
  • Rest of State: 18o
But Dallas kept their old evidence, while the rest of the state mostly threw it out in older cases. It's probably generous to assume most jurisdictions kept biological evidence in even 10% of old cases, even more so to believe that all the old evidence has been tested. But even if both those unlikely assumptions are true, that would still mean our estimate for the likely number of innocent people in the rest of the state goes up by another factor of ten, or:
  • Dallas: 200
  • Rest of State: 1,800
  • Total: 2,000 innocent people in prison or recently exonerated
Notably, that gets us right into the ballpark with other possible methodologies of estimating innocence.

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 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 has taken baby steps. On most of them they've done nothing.

So yes, 38 DNA exonerations in Texas (or whatever is the real number) are a serious concern. But what's outright alarming is that these men represent hundreds or even thousands of other innocent people sitting in Texas prisons who modern technology cannot liberate.

UPDATE: I've added a reader poll in the sidebar listing the various actual innocence estimates I'm aware of as applied to Texas' prison numbers - register your vote how many innocent people you suspect are currently residing in Texas prisons. If you calculate things differently, pick the answer that's closest and let me know how you think the numbers should be crunched in the comments of this post. CLARIFICATION: In the reader poll, treat "5,000 as "5,000 or more." I'd change the text but the software won't allow it once voting has begun.


Hook Em Horns said...

Law and order Texas has heavily weighted the justice system in favor of the DA and police who will use unlimited resources in which to prosecute ANYONE accused of a felony.

We have turned a blind eye to the shady practices of these same DA's and police who have operated corrupt crime labs (as in Houston) and/or have just flat lied to convict people who would never have been convicted in a state with true checks and balances.

We have allowed 112 prisons to be built and have passed enough felony laws to keep them filled and in essence have built a beautiful prison-industrial complex.

We have allowed our prison system to be run by an idiot without any background in corrections other than counting beans and we have stood by while trash has been hired to manage and work in these prisons.

Forgive my penchant for drama and possibly over-simplification but this is how I see it. It is not a complicated formula to understand but it will be hell to fix. Texans, by and large, just don't care about this stuff and he have a Governor who loves to hear himself talk about law and order and how Texas is better than the rest of the country.

Granted, we may be better than the rest of the country than a lot of states in a lot of ways but our prisons and justice system are NOT part of that equation and anyone who thinks they are is a true idiot!

Anonymous said...

Grits,...just a couple of questions and/or suggestions...

First, would you mind clarifying for the readers what the difference is between exonerated, falsely convicted, and actual innocence?

Do the statistics change depending upon which term is used?

What percentage of those incarcerated with what I'll refer to as "questionable convictions" do you suppose actually plead guilty?

Finally, do you have any idea what percentage of tax dollars (state and local) are spent on the criminal justice system in Texas vs. other government services or programs?

Gritsforbreakfast said...

@3:12: On "the difference ... between exonerated, falsely convicted, and actual innocence," I'm using those terms in this post as essentially synonyms. Most of the datasets we're discussing (DNA exonerations, etc.) are "actually innocent" people, so by extrapolating from there, it's that category of prisoners these estimates are trying to get at.

I don't know how you're defining "questionable convictions" so I can't answer that question. 100% of the 38+ DNA exonerees were actually, factually innocent of the (usually very serious) crimes for which they were convicted, if that helps clarify things for you. The estimates in this post are based on those DNA exoneration data, not cases where guilty people get off on technicalities, which seems to be your implication.

About 25% of DNA exonerations nationally have come in cases where the defendant confessed or pled guilty.

On the cost question, I don't know the big picture number offhand.

Anonymous said...

Grits, I really wasn't implying anything other than sometimes those terms are not clearly defined so the reader might have a misconception as to what the data really suggests.

There have been any number of "exonerations" claimed in the media in recent years where convictions were overturned on appeal for some legal reason (maybe a confession was found to be legally defective, or a search invalid) and the prosecution felt there was no longer evidence to establish guilt beyond a reasonable doubt. The Kerry Max Cook case from Smith County comes to mind and he later pled "no contest" if memory serves.

You mention Cameron Willingham in your post but I don't know that anyone will ever be able to state that he was actually innocent of the offense the jury found him guilty of. At best, the most that anyone will be able to honestly assert is that without the expert arson testimony, the prosecution might not have been able to establish guilt beyond a reasonable doubt. Even then, a lot of the evidence cited in the various links about the case on your site would cause many reasonable minded people to believe that he more than likely killed those children.

If cases like Willingham's are included in the data, then the percentages of "actually innocent" people who have been convicted might be lower than the data suggests.

Gritsforbreakfast said...

"If cases like Willingham's are included in the data"

Except they're not. You can keep repeating that in the face of my denial if you want but it's not true. The 38 DNA exonerations from which the data in this post was extrapolated were all demonstrably, actually, factually innocent of the crimes for which they were incarcerated. Critique the math, if you like, but don't obfuscate the fact that these DNA exonerees are actually innocent people. (In most cases authorities identified the real perpetrator.)

There may be an additional category of "questionable" convictions, as you say, but that's not the subject of the data presented in this post.

Anonymous said...

From what I've seen I suspect these numbers are low. I suspect the real numbers are much, much higher. By the way, someone above mentioned the Kerry Max Cook case. I would say this is definitely a case of actual innocence. Anyone who looks at the facts of the case should reasonably conclude he is innocent. The only ones who won't conceed that are the prosecutors who withheld evidence and knowingly relied on perjured testimony to convict him. In this case everyone knows who the real killer was. You can definitely place the Cook case in the actual innocence column. The interesting thing is he actually still stands convicted of the crime because he pled no contest so he could get off of death row.

Anonymous said...

Besides just plain innocence there is guilt because your lawyer makes a deal with the prosecutor behind your back, or you are coerced by police brutality/ coercion/ force to sign a confession to end the torture, or you take a plea because the police harrass your family, continuously arrest you for the same crime and your family runs out of money, or the press finds you guilty of a sex crime and a person caves to public pressure as their home is egg'd, windows blown out, or for whatever crime you are just too poor to find a good lawyer and when you do get a good reccommend from someone they don't have your interest at heart even though you are paying them. How many people are stuck in prison for violent crimes on paper that they were coerced in some manner or decieved in some manner to take a plea? Or they got an exhorbatant sentence once they did take the plea. Lack of due process at any level is a crime against all of us!

Hook Em Horns said...

Lack of due process at any level is a crime against all of us!

9/14/2009 05:39:00 PM

OMG...truer words were never spoken. Due process in Texas is a myth, just ask the Governor.*

*Rick Perry on San Angelo compound said he was NOT concerned with anyone's "due process" as long as children may have been abused.

Anonymous said...

Two factors often overlooked in wrongful conviction cases are (a) the woefully inadequate discovery laws in Texas, which frequently result in trial by ambush. If even a few of the procedures available to civil litigants were available to the defense in criminal cases, some of the unreliable evidence and dubious witnesses often seen in the crminal courts could be flushed out; and (b) better training and funding for defense lawyers. The defense bar at present is a self-selecting group, ranging from the zealous and profoundly committed to the losers whose only hope of making a living is to sign on to the court lists for taking appointments. There's no requirement for specific training in forensic evidence or mental health issues (both of which are critical in criminal practice) and no expectation that the run of the mill case - which is all-important to the defendant in question - will ever be investigated by the defense. Many lawyers are too ignorant or too cowed to demand investigative funding from the courts, and many judges will deny funding when asked. Because the taxpayer is not asked to pay the price for a fairly litigated trial in the first place, individuals end up paying for that false economy with their liberty and sometimes their very lives.

Anonymous said...

I agree with 09:59, there are some defense lawyers who should not be allowed to defend anyone.

Try filing against them especially in South Texas and see what happens; nothing, they come out smelling like a rose and even if the Northern Courts ruled against him and he is in the Southern Court system, the court where he practices wins out, no matter the proof submitted and proven.

Our court system needs a general overhaul and the DAs need to learn that "win-win" at the expense of someone's life in not a win for anyone.

I for one am fed up with the Texas Judicial System and the lack of our Legislative Body to do anything to contain the outrageous laws that exist. Making more laws does nothing to further faith in the court system. Term limits would be a first step to correcting the corrupt system, both in the courts and in the Legislative System.

KDA0618 said...

5:39, you have hit the nail on the head when it comes to Dallas County's plea bargain system. Until recently I worked in TDCJ in a capacity where I read police reports and interviewed offenders. The amount of plea bargains on convictions from Dallas County is truly ASTOUNDING!!! There are so many cases where it is apparent from the police reports that there was not sufficient evidence to get a conviction, but the court appointed attorney advised the offender that if he didn't take the plea bargain, he would be given such a long sentence that he would not see the light of day for many years to come. It is easy for someone who is innocent and walking the streets to say that he would never plead guilty to something he didn't do, but for someone who has been sitting in jail for months and was originally told that he would be given a 20 year sentence (for something he didn't do), a 5 year sentence starts sounding better all the time. This is especially true when you don't have any other resources, and the closest thing you have to a friend is a court appointed attorney who will tell you anything to get your case finished up. It's a horrible injustice in our "justice" system.....

Anonymous said...

If you just ask the prisoners "Who all here is innocent?" you'll find that the prisons are FULL of innocent men!

Just sayin'

KDA0618 said...

Actually where I worked I found that most of the men I interviewed were willing to admit guilt. By no means do I think they are all innocent, but I have seen enough to know that there is more than one man in prison in Texas who didn't commit the crime for which he was convicted. Scares me to think of the murderers walking free because of it.

Anonymous said...

Don't worry about them... they'll keep killing until they get caught.

Charlie O said...

Posted this afternoon at The Agitator:

Patricia Moore: Continuing Forensics Scandal in Texas

more Texas "tuff on crime" bullshit.

Hook Em Horns said...

Anonymous said...

If you just ask the prisoners "Who all here is innocent?" you'll find that the prisons are FULL of innocent men!

Just sayin'

9/15/2009 02:12:00 PM

Yeah...according to the stats, you may be RIGHT!! Idiot.

PirateFriedman said...


Even if one does not ask or pretends not to understand free market economics, the philosophical question standing solemnly at attention in the middle of the room, it remains apparent that the mere presence of a private “for profit” driven prison business could possibly lower taxes and perhaps bring us closer to the true meaning of the American Revolution: the right to be left alone. Sadly, until all wasteful spending on government run prisons has been abolished and outlawed, society will continue to waste its full potential. We must lower spending on all prisons, but if we’re going to spend money on prisons, let it be spent on private prisons and not on overpaid correction officers working in the public sector.

Our government cannot continue to engage in social engineering, nor can it ignore the taxpayer which funds its parasitic existence. There is urgent need for the good people of this country to emerge from the shadows of indifference, apathy, cynicism, fear, and those other dark places that we migrate to when we are overwhelmed by frustration and the loss of hope.

My hope is that you will vote Libertarian, but if you don’t, please cheat on your taxes whenever possible.

–Pirate Rothbard
"Practicing Capitalism Without a License"

Hook Em Horns said...

Texas isn't normal at all! Innocents in prison...DA's sleeping with judges. Not much has changed since the Republic was formed. This state is a dangerous place to live. God forbid you ever find yourself accused of a crime and have to PROVE yourself innocent. I HATE WHAT TEXAS IS WHEN IT COMES TO JUSTICE OR LACK THEREOF. AND FOR ALL YOU HATERS...I WAS BORN IN ARLINGTON!

Anonymous said...


Yeah about 12 years ago, right?

Hook Em Horns said...

Anonymous said...


Yeah about 12 years ago, right?

9/17/2009 06:54:00 AM

Close! Awwwwwww do I make your blood boil? GOOD!

Clifton Tinder said...

When a person's parole is violated on a dismissed misdemeanor simple because TDCJ can, that's an innocent person in prison. Read the blog under my profile. That's an "innocent" in prison. Big Question is: How do those who don't belong in prison get out when the Texas Board of Pardons and Parole do as they please.

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