Published: 20 October 2012
The Numbers
Prior to the National Registry of Exonerations (NRE), no agency of any kind, government, academic or non-profit had ever pulled together such a comprehensive list of exonerees. The criteria is strictly adhered to and must always have an element of actual innocence. They do not inflate the numbers. The NRE points out that there are over 1,170, of what they call "mass exonerations" that are not even counted. The NRE makes a point of stating that their database is incomplete. Most of the cases in the database are "high profile" cases, and the "low profile" cases came to light only because someone working on the project knew someone else who knew of an exoneree. How many more are out there? The National Registry is determined to find out.
NRE's definition of an Exoneree—A person who was convicted of a crime and later officially declared innocent of that crime, or relieved of all legal consequences of the conviction because evidence of innocence that was not presented at trial required reconsideration of the case.
With a flag raised of a single repository for housing information on all the nation's exonerations, the number in the database is growing rapidly. That growth is fueled by an ever increasing frequency of exonerations and, more dramatically during this time period, pre-existing exonerations that had never before been collected. When the database first went public on March 1st, 2012 the average number of exonerations worked out to be 3.14 exonerations per month. But since the registry went public, the number has been growing at a rate of 15 exonerations per week! On October 26, 2012 the number of exonerees in the database hit 1000.
For anyone even mildly sympathetic to Blackstone's ratio, "better that ten guilty persons escape than that one innocent suffer", 1000 exonerations since 1989 should be enough to shake the foundations of our cherished system. Depressingly, it goes way beyond.
Hard numbers of known exonerations is an important fact. These cases shed a tremendous amount of light of what goes wrong and how we might fix things. But when one examines the tortuous route taken by these people with unreasonable hurdles placed in their way, one has to conclude that the large majority of actually innocent men and women don't ever make it. They serve their time, sometimes decades, sometimes for life. Among the wrongfully convicted, exonerations are the exception. Exonerations are only the starting point for attempting to determine the number of wrongful convictions.
Reflections and Response
As we cross this, albeit, arbitrary threshold of 1000, we can pause and reflect on what this emerging data means.
1. We need to recognize that this problem is far more extensive than ever before acknowledged by the criminal justice community. Most news articles referring to wrongful convictions still quote the number of DNA exonerations published by the Innocence Project in NY. With all due respect to New York, they are less than 1/3 of the total picture. When you see an article that quotes NY, implying those are the only exonerations, comment on the article and refer to the National Registry of Exonerations. It simply does not serve well to under report the depth of the problem by 2/3s!
2. We have to find a way to get more people out sooner. Law school based innocence clinics are at full capacity and their potential for expansion is limited. They are not anywhere near keeping up with the numbers of wrongful convictions being added to our prison system on a daily basis. There must be a new wave of innocence projects coming out of other sectors of society. Since there is certainly no money to be had in this kind of work, it makes sense that many will come out of the non-profit sector. More Innocence Projects They can increase the number of exonerations in two ways:
By forming additional innocence projects. We presently have two innocence projects in Michigan, U of M and Cooley Law Schools. But what if we had 10 innocence projects? Or without the restraints of the college degree process, an additional grass roots project with 10 times the capacity of what we have presently? Too much? With the numbers we are looking at, hardly.
By forming additional innocence projects or specialized groups that will assist the already existing innocence projects to complete their cases faster. The model of Proving Innocence is an example. We will take non-DNA cases, screened by the projects and given to us in partnership and then investigate for non-DNA evidence. With more resources working on discovering new evidence, the law students will have more cases to bring into court.
The Courts The other avenue for getting more people out sooner is the criminal justice system itself. Before a conviction, all one has to do is to prove he or she is not guilty.You do not have to prove your innocence, so no mechanism has been developed for that. But if wrongfully proven guilty, there is no process to receive relief by proving your innocence. The appeals process only considers procedural problems. They do not look at claims of factual innocence. You may be able to prove you are actually innocent, but you are still legally guilty. With the established fact that wrongful convictions occur, the government needs to adapt. It needs to weave into its post-conviction fabric the concept of proving actual innocence. 3. It is a lofty pursuit to exonerate wrongfully convicted people. The ultimate goal, however, is to reduce wrongful convictions from happening in the first place. Each state must take their own mistakes and put laws into place that will prevent or lessen the possibility of those mistakes happening again. By examining proven wrongful conviction cases, we have learned appropriate counter measures. It's time to institutionalize them, such as New York requiring that all interrogations be video taped.
Additionally, the courts need to accept the fact that they are human, too. Prosecutors and law enforcement must be held accountable where there are provable malicious and unethical actions. If there are no consequences, there is license. It's basic human nature. The system needs a healthy dose of self-examination.
Each wrongful conviction is a tragedy, which affects the person wrongly convicted, not just in years served, but in ruined careers, psychological problems and lost relationships, so that the person cannot ever fully recover after leaving prison. It goes beyond that person and devastates families with broken marriages and children growing up without a father or mother . As the number of accounted exonerations grows, the silver lining is that it gives us a more realistic comprehension of the problem, so that maybe we'll do something about it. The work of the NRE has put us on the right track. Let's see it for what it is, not exaggerating or minimizing, and let's make a difference.
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