“In the end, DNA does not hold all the answers: it only shows us the right questions,” (pg. 349). These words conclude Actual Innocence, a book ostensibly about the Innocence Project using DNA evidence to exonerate people convicted of, and serving jail time, for crimes they didn’t commit.
But the book makes no claim that DNA evidence will be able to exonerate all the wrongfully convicted, let alone stop all wrongful convictions. This is because the cases in which the Innocence Project has exonerated the wrongfully convicted have shown staggering error rates for almost every tool we use to prosecute all crimes, only 20% of which have DNA evidence (pg. 351).
Those tools include the most fundamental elements of investigation, evidence, and prosecution — the tools that probably make most Americans believe our criminal justice system almost always gets the “right person,” such as police investigations, eyewitness identification, forensic evidence, informants, the adversarial judicial process, and even confessions.
In cases where the wrongfully convicted have been conclusively exonerated with DNA evidence, the Innocence Project has found the following rate of error in these other cornerstones of our criminal justice system:
- Police misconduct in 50% of cases (pg. 365);
- Prosecutorial misconduct in 45% of cases (pg. 365);
- “Subpar or outright incompetent” public defense lawyers in 32% of cases (pg. 242);
- Mistaken eyewitness identification in 70% of cases;
- Misuse of forensic evidence in 46% of cases;
- False testimony from informants in 15% of cases;
- And false confessions in 25% of cases.
As the final chapter to the first edition puts it, the causes of wrongful convictions are always the same:
Clarity is manufactured about moments of inherent confusion. Witnesses swear they can identify the man who held the gun or knife. Police officers then coax or force confessions from suspects they believe guilty. Prosecutors bury exculpatory evidence and defense lawyers sleep on the job. Forensic scientists shade their conclusions or skip the tests altogether, to accommodate a presumption of guilt.
Of course, the rate of exonerations, and thus all these other abuses, is higher when the wrongfully accused is a person of color, as are all injustices in our criminal justice system, and our society at large. “Racism and bigotry, written out of the books, still shadow some police precincts, courtrooms, and jury boxes.” (pg. 324)
Most Americans probably assume that when people in prison for crimes they didn’t commit actually do discover evidence proving their innocence, they are at least promptly released. Actual Innocence thoroughly dispels this myth. The hurdles between incarcerated people who can prove their innocence and their actual exoneration are many, and often insurmountable. Actual Innocence details the obfuscation of prosectors, lack of legal mechanisms for reviews, and lack of political will to pardon, even when there is irrefutable DNA evidence of innocence. Again, in the far greater number of cases in which there is no DNA evidence, all the same hurdles exist, yet those innocent inmates are often prevented from even approaching the starting line.
At the very least, most of us probably assume that when people are exonerated, our society tries to justly compensate them for the injustices they suffered, but of all misconceptions about wrongful convictions, this is perhaps the furthest from the truth.
The Innocence Project has found that fewer than one-third of the wrongly convicted have received any compensation (pg. 298). And those that are compensated are often compensated a mere pittance because of caps placed on the amount that the wrongfully convicted are allowed to recover. For example, the U.S. Government places a cap on how much those who wrongfully served time in federal prisons at $5,000, regardless of how long the innocent person spent in prison, how much they spent on their defense and exoneration, and how devastating the entire process was on them and their families (pg. 298). This is largely because most jurisdictions believe that people who were convicted by our judicial system were given a fair process, despite all the evidence cited above, and thus there was no wrongdoing and no wrongful actor to hold responsible for the wrongfully convicted person’s expenses, pain, and suffering.
Throughout Actual Innocence, the personal stories of those wrongfully convicted — who were railroaded, subjected to the horrors of prison for years upon years, often after being proven innocent, and who had their families and outside lives completely decimated — are told with deep compassion, highlighting each of the broken elements of our criminal justice system one-by-one.
These stories are powerful and need to be heard. The work of the Innocence Project is critical and should be supported. But to me, the most important work of the book — and exonerations in general — is shinning a light on just how broken the fundamental elements of our criminal justice system are in every single case.
As a law student, going into the profession to hopefully influence positive change, perhaps the most disheartening case is that of Arizona v. Youngblood. Youngblood had been convicted of molesting a child, but maintained his innocence, and the critical evidence in the case — semen left on the boys pants — had been destroyed by the police (based on the tests available at the time) by failing to refrigerate it. Youngblood properly argued to the Supreme Court that the evidence that would have exculpated him had been destroyed by the police, and thus he had not received a fair trial. The Supreme Court disagreed, said he had received a fair trial, and upheld his conviction. He sat in prison for 22 years before science improved enough to test that DNA sample. When it did, it proved him innocent, and the Supreme Court — and entire criminal justice system — guilty. (pg. 334).
That the Supreme Court got it wrong, and considered a process that put an innocent man in prison for 22 years “due process,” should give everyone pause. Because of terms like “innocent until proven guilty,” “guilty beyond a reasonable doubt,” unanimous jury verdicts, and an overall belief that our adversarial criminal justice system gets to “the truth,” many believe this “due process” is ironclad. But Actual Innocence shows that this process has repeatedly got it wrong, even in capital cases. We have put innocent people to death. And these are the highest profile cases — which have received the most attention, most scrutiny, and most resources to prove innocence.
Addressing these blatant flaws doesn’t begin to address the flaws in far more minor cases that fill our prisons and ruin hundreds of thousands of lives every single year — disproportionately the lives of people of color. Nor does it address the cases in which people are actually guilty as charged, but for reasons of poverty, illness, and pressures created by still larger flaws in our system.
But by irrefutably exposing some flaws, hopefully the flaws exposed by the Innocence Project and exonerations generally can open people’s minds to others. Hopefully this can make people more compassionate to all cases of incarceration, poverty, inequity, and illness. And hopefully this can open people’s minds to eliminating criminalization and incarceration, which has not only proven to be deeply flawed, but deeply ineffective at deterring crime, and move people toward advocating for treatment and rehabilitation and addressing the underlying issues of poverty and inequality instead.
Despite spending the bulk of many years now studying the flaws in the criminal justice system, Actual Innocence was a valuable read for me. It was helpful, as always, to get both concrete facts and powerful personal stories about the flaws in our criminal justice system. The book is laid out to address each broken element of our criminal justice system — eyewitness identifications, prosecutorial misconduct, false confessions, etc. — one-by-one, thoroughly, with engaging cases that exemplify each one, and the statistics on each. This methodical approach can also serve as a perfect introduction to all the flaws in our criminal justice system for those who still refuse to see them — I know I’ll be gifting the book to a few people for that very purpose…
Originally published at Keegan NYC.