Convicting the innocent

Michigan and Northwestern law schools have released a study of wrongful convictions and exonerations in recent decades (via AP):

More than 2,000 people who were falsely convicted of serious crimes have been exonerated in the United States in the past 23 years, according to a new archive compiled at two universities.

There is no official record-keeping system for exonerations of convicted criminals in the country, so academics set one up. The new national registry, or database, painstakingly assembled by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, is the most complete list of exonerations ever compiled.

The database compiled and analyzed by the researchers contains information on 873 exonerations for which they have the most detailed evidence. The researchers are aware of nearly 1,200 other exonerations, for which they have less data.

They found that those 873 exonerated defendants spent a combined total of more than 10,000 years in prison, an average of more than 11 years each. Nine out of 10 of them are men and half are African-American.

Nearly half of the 873 exonerations were homicide cases, including 101 death sentences. Over one-third of the cases were sexual assaults.

Not surprisingly, there’s some common failures in our system that lead to this:

In half of the 873 exonerations studied in detail, the most common factor leading to false convictions was perjured testimony or false accusations. Forty-three percent of the cases involved mistaken eyewitness identification, and 24 percent of the cases involved false or misleading forensic evidence.

In two out of three homicides, perjury or false accusation was the most common factor leading to false conviction. In four out of five sexual assaults, mistaken eyewitness identification was the leading cause of false conviction.

Certainly seems clear that we need to introduce some more safeguards with how we use eyewitness testimony.  And as for the perjury, just maybe if we stopped offering jailhouse snitches reduced time in prison to concoct jailhouse confessions that rarely seem to happen in real life, that would sure help to.  Of course, 873 is a tiny drop in the bucket of all the convictions.  Suffice it to say, though, that the 873 represent systematic flaws in our justice system that I would guess are responsible for at least 100x that amount of wrongful convictions.

Death penalty and cost/benefit

Interesting column today by Charles Lane about keeping the death penalty as an option for at least the “worst of the worst,” i.e., Anders Breivik in Norway:

In the United States, abolitionist arguments are gaining traction, especially claims about the high cost of lengthy death-penalty litigation and the risk of executing people by mistake. Malloy also cited a “moral component” to his decision.

Such practical and moral concerns are at their most understandable in run-of-the-mill convenience-store murder cases, where the risk of error seems relatively high compared with the benefits of punishing murder with death.

But Breivik’s was no ordinary crime. It presents the special case of a cold-blooded massacre of children by a political terrorist whose guilt is unquestionable and who remains utterly unrepentant; indeed, he told the court that he would kill again if given the opportunity…

The stubborn fact is that death-penalty abolitionism runs counter to one of humanity’s oldest and most persistent moral intuitions: that there should be condign retribution for the most monstrous transgressions.

Agreed with all that.  I have no doubt that Breivik deserves to die for his crime.  And probably some of those more heinous “convenience store” murderers as well.  And my moral intuition feels quite good when really bad people are executed for their crimes.  That said, it really comes down to the cost/benefit that Lane points out.  If you are going to have the death penalty, you are going to be executing innocent people.  That is simply a cost I am unwilling to bear for the benefit of executing the really bad guys.  In theory, we could limit the death penalty to the obviously guilty among the worst of the worst offenders.  But, as much as I think slippery slope arguments are over-used, I suspect that you are very much looking at a slippery slope here and that once you have a death penalty, more and more accused murders would actually be facing it.

Chart/Map of the day

Executions by state since 1976 (via the Economist):

You will likely be unsurprised to see that Texas is in a league of it’s own when it comes to executing people (some of them, perhaps innocent).

Conservatives don’t like big government unless…

Unless that “big government” is police officers asking you to spread your butt and cough after being stopped for a traffic violation.  Today’s 5-4 SC decision:

The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

One on-line commenter replied perfectly, “ On the other hand, the Supreme Court can second-guess the democratically elected Congress, when it tries to solve the nation’s health care problems.”  So it would seem.   I enjoyed these tidbits from Breyer’s dissent:

 Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration. So were victims of sexual assaults and women who were menstruating.

Yowza!  Though, nice rebuttal from Kennedy:

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

The story of the Black man who was stopped driving his nice car and falsely arrested, held, and strip-searched that led to this case is plenty disturbing.   Read the article if you are not familiar with it.  Anyway, I find Breyer’s evidence-based argument the most compelling:

Justice Breyer wrote that there was very little empirical support for the idea that strip-searches detect contraband that would not have been found had jail officials used less intrusive means [emphasis mine], particularly if strip-searches were allowed when officials had a reasonable suspicion that they would find something.

For instance, in a study of 23,000 people admitted to a correctional facility in Orange County, N.Y., using that standard, there was at most one instance of contraband detected that would not otherwise have been found, Judge Breyer wrote.

I’ll admit not necessarily the easiest case, but I’ve got to err on the side of not strip-searching nuns arrested at anti-war demonstrations.  Call me a softie.

Stand your ground– not chase and shoot

Nice analysis of Florida’s “stand your ground” and it’s application in the Trayvon Martin case by Mike Munger:

If you are carrying a gun, you have it only to use as a last resort, and you are required, both morally and as a matter of law, to forebear from doing certain things you might otherwise do. If you are carrying a gun with CC permit, you cannot:

1. Drink alcohol. At all, not any.
2. Intentionally put yourself in a situation where you need to use the gun.
3. Get into a fight.

If for some reason you do get into a fight, you have to walk away. If walking away does not work, you have to run.

Only if you have made a serious reasonable effort to escape, or are prevented by circumstances from doing so (eg, other person has a deadly weapon) can you use your weapon, or for that matter any other kind of deadly force, in response. Someone pulls a knife on you, you don’t have to run. Someone talks bad about your mama, walk away…

Now, the actual point. Re the Trayvon Martin / George Zimmerman thing. The question is, did Zimmerman try to walk away/run away? He did not. Mr. Zimmerman, in fact, followed Mr. Martin. That means Mr. Zimmerman cannot use his weapon. If he does, and kills Mr. Martin, then Mr. Zimmerman is guilty of manslaughter, even if the only account of events we credit is that given by Mr. Zimmerman. [emphasis mine] ZIMMERMAN FOLLOWED MARTIN. (Plus, the police definitely told him not to, just in case Zimmerman was confused). If after that Zimmerman shot Martin,even if it was self-defense in the particular circumstances of that moment, Zimmerman is guilty of manslaughter. A kills B in a fight A started. A following B is starting a fight, seeking out a fight. It’s not walking away.

Which again raises the question, how in the world has Zimmerman not yet been arrested?!

Plea Bargaining and originalism

Let’s just stick with this Supreme Court theme today as I want to mention a really nice post Kevin Drum wrote last week about the Supreme Court’s surprising and surprisingly good decision to hold that a defendant’s right to decent legal representation extends to plea bargains:

Conservative Supreme Court justices really, really hate the idea that we live in the 21st century:

Defendants in criminal cases have a constitutional right to a competent lawyer’s advice when deciding whether to accept a plea bargain, the Supreme Court ruled, providing a significant expansion of rights that could have a broad impact on the justice system.

“Ours for the most part is a system of pleas, not a system of trials,” Justice Anthony M. Kennedy said for the majority in a pair of 5-4 decisions. Noting that about 97% of federal convictions and 94% of state convictions result from guilty pleas, Kennedy wrote that “in today’s criminal justice system, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for the defendant.”

The ruling drew a sharply worded dissent from Justice Antonin Scalia, who took the unusual step of expressing his disagreement in the courtroom….“Until today, no one has thought that there is a constitutional right to a plea bargain,” Scalia [said].

Well, there’s still no constitutional right to a plea bargain. It’s at the discretion of the prosecutor, the same as it’s always been. But Kennedy has this one right: in 1787, the “criminal prosecutions” mentioned in the Sixth Amendment were all jury trials. In 2012, virtually all criminal prosecutions are plea bargains. Like it or not, times have changed, and for the vast majority of defendants it’s the plea bargain that’s effectively their trial…

This case really seems to capture the bankruptcy of judicial originalism in a nutshell. Scalia and his fellow conservatives just can’t stand the idea that constitutional rights are necessarily going to evolve as the nature of society evolves. So they stamp their feet and pound their fists and insist that, by God, a trial is a trial even if only 3% of modern-day defendants ever actually get one. Their starry-eyed attachment to a gauzy vision of 18th-century virtue is puerile at best and actively malign at worst.

Couldn’t have said it better myself (actually quite sure of that, I love “puerile at best and actively malign at worst”).  Nice to see Kennedy on the right (i.e., left) side here.  I just really don’t get why so many conservatives seem so wedded to a “tough on crime” approach even in the face of actual injustice.  If you are offered a plea bargain and your attorney doesn’t even tell you about it, it’s pretty clear that you’ve not had competent representation.  That is, unless you live in Scalia’s world where there’s nice black and white clarity that all accused criminals are bad guys.  Once again, I utterly fail to see his much-purported judicial brilliance.

Prison in America by the numbers

Nothing all that new here if you’ve been paying attention, but Fareed Zakaria makes a very succinct and data-driven case for just how nuts are current “war on drugs” and incarceration policies are:

 Here are the facts. The U.S. has 760 prisoners per 100,000 citizens. That’s not just many more than in most other developed countries but seven to 10 times as many. Japan has 63 per 100,000, Germany has 90, France has 96, South Korea has 97, and ­Britain – with a rate among the ­highest – has 153….

This wide gap between the U.S. and the rest of the world is relatively recent. In 1980 the U.S.’s prison population was about 150 per 100,000 adults. It has more than quadrupled since then. So something has happened in the past 30 years to push millions of Americans into prison.

That something, of course, is the war on drugs. Drug convictions went from 15 inmates per 100,000 adults in 1980 to 148 in 1996, an almost tenfold increase. More than half of America’s federal inmates today are in prison on drug convictions. In 2009 alone, 1.66 million Americans were arrested on drug charges, more than were arrested on assault or larceny charges. And 4 of 5 of those arrests were simply for possession….

Zakaria also references a great New Yorker piece by Adam Gopnik I wrote about a couple of months ago.  If you didn’t read it then, read it now.

Fox News knows its audience

If you don’t know the story of Trayvon Martin, you should.  (Really short version: Black teenager walking in his neighborhood while carrying skittles and a cell phone is shot to death by overzealous White neighborhood watch fellow who’s convinced the kid is up to no good.  Local police do not charge).  You can see why Fox News viewers may not want to hear a lot about this story.  Hence, we get this graphic via ThinkProgress:

Shaken baby redux

Emily Bazelon (again) highlights among the more egregious convictions I’ve heard of for shaken baby syndrome.  Just try out this set of facts:

Steven Witt’s health problems started at birth. He was born with the umbilical cord wrapped around his neck, and he had trouble breathing. He got better and went home, but a few weeks later, his mother, who lived with Drayton Witt and later married him, brought the baby to the doctor because he’d been feverish and vomiting for three days. A few weeks later, Steven was sick again, with a fever and an upper respiratory infection. From then on, his mother was in frequent touch with the pediatrician.

A few days before Steven turned 4 months old, his mother took him to the emergency room because of what was by then his familiar fever, congestion, and vomiting. The doctors thought he had pneumonia, and they prescribed an antibiotic. After Steven took his first dose, his left eye couldn’t focus, he refused the bottle, and he lay limp. The next morning, he threw up and started shaking. Witt came home from work, and he and Steven’s mother rushed the baby to the hospital.

In the ER, Steven had a grand mal seizure. He spent the next six days in the hospital, with a fever and pupils that weren’t dilating normally. The doctors weren’t sure what was wrong, but tests showed more massive seizures, even though Steven was taking anti-seizure medication. His mother told the doctors that Steven had lost head control and couldn’t track with his eyes as he could before. Still, they sent the baby home with his parents before the week was up, on May 7, with antibiotics and the anti-seizure drug Phenobarbital.

According to Witt’s defense, Steven was never again a normal, healthy baby. Sometimes, his eyes twitched back and forth. He threw up repeatedly. His mother called the pediatrician and the hospital; his grandmother worried about his health; and a neighbor who was a nurse noticed the baby’s recurring problems. Steven’s mother brought him back to the pediatrician on May 26 because he’d again had a fever for days and had been projectile vomiting. She was told to continue the antibiotics and Phenobarbital, and she and the baby were sent home.

Got that?  And when he ends up in the ER a few days later, and ultimately dies, they decide it was from being shaken immediately prior to the ER visit.  Seriously?!  With that kind of medical history?!  Anyway, Bazelon highlights the fact that the doctor who invented the concept of Shaken Baby Syndrome thinks this is not a case of it and that the medical examiner from the case has recanted his testimony.

The criminal justice system hates admitting it was wrong, even when it so clearly was.  Bazelon’s conclusion:

Meanwhile, the district attorney who prosecuted Drayton Witt hasn’t responded to his petition for a hearing and a new trial. As these cases move through the courts, they are testing prosecutors’ and judges’ willingness to undo old verdicts. That’s never an easy step to take. But sometimes it’s the only one that is just.

Here’s hoping that the Arizona DA (and other DA’s in similar positions) prove they are more interested in justice than in promoting the idea that they are infallible (I’m not holding my breath).

Re-thinking solitary

Over-use of solitary confinement is stupid, stupid, stupid.  We actually tried this with the original penitentiary systems.  The name is derived from penitent– you were supposed to silently and without any human companionship mediate on your failures and thus improve.  Of course, in reality, this is a recipe for mental illness.  That’s why we got rid of this system.  Alas, the tough on crime types have basically brought it back.  Now, even the good people of Mississippi are figuring out how counter-productive this can me and improving their ways.  Hooray!  Read more in this really nice Times piece.

Your NC Republican legislature

Big day in NC politics– most notably, our incumbent governor, Bev Perdue, deciding not to run for re-election (she’s been considered among the most vulnerable Democratic governors) and re-districted 13th district Democrat Brad Miller, deciding he was not going to challenge 4th district incumbent (my rep, and former Duke PS Poli Sci professor) David Price.  And, the Lieutant Governor’s chief lawyer died today (quite unexpectedly at the age of 37).  A couple of my journalist friends called it their craziest day ever.

Probably a good thing for NC Republican legislator, Larry Pittman.  Laura Leslie was working on a story about his absurd call for medieval use of the death penalty when the Perdue story broke.  Matthew Burns finished it off, so here it is:

A Cabarrus County lawmaker wants to bring back public hangings in North Carolina as a deterrent to crime, and he says doctors who perform abortions should be in the line to the gallows.

Republican Rep. Larry Pittman, who was appointed to the District 82 House seat in October, expressed his views in an email sent Wednesday to every member of the General Assembly…

“We need to make the death penalty a real deterrent again by actually carrying it out. Every appeal that can be made should have to be made at one time, not in a serial manner,” Pittman wrote in the email. “If murderers (and I would include abortionists, rapists, and kidnappers, as well) are actually executed, it will at least have the deterrent effect upon them. For my money, we should go back to public hangings, which would be more of a deterrent to others, as well.”

Um, wow.  It’s one thing for the nutty, uninformed guy yelling at the tv to think so facilely about politics.  Now, that nutty guy is the sort of state legislator Republicans think should be deciding important issues in this state.  Yikes!  As we know, of course, everybody ever put on death row is obviously guilty.  Why waste time on even a single appeal?!  It’s not like anybody on death row has ever been exonerated.

Crime in America

Fabulous article about crime and prisons in modern America by Adam Gopnik in the latest New Yorker.  If you have any interest at all in criminal justice (and our horribly destructive policies towards drugs) you owe it to yourself to read it.   There’s a great part where Gopnik does a really nice run-down on the latest research for our recent decline in crime:

Crime is not the consequence of a set number of criminals; criminals are the consequence of a set number of opportunities to commit crimes. Close down the open drug market in Washington Square, and it does not automatically migrate to Tompkins Square Park. It just stops, or the dealers go indoors, where dealing goes on but violent crime does not.

And, in a virtuous cycle, the decreased prevalence of crime fuels a decrease in the prevalence of crime. When your friends are no longer doing street robberies, you’re less likely to do them. Zimring said, in a recent interview, “Remember, nobody ever made a living mugging. There’s no minimum wage in violent crime.” In a sense, he argues, it’s recreational, part of a life style: “Crime is a routine behavior; it’s a thing people do when they get used to doing it.” And therein lies its essential fragility. Crime ends as a result of “cyclical forces operating on situational and contingent things rather than from finding deeply motivated essential linkages.” Conservatives don’t like this view because it shows that being tough doesn’t help; liberals don’t like it because apparently being nice doesn’t help, either. Curbing crime does not depend on reversing social pathologies or alleviating social grievances; it depends on erecting small, annoying barriers to entry.

Now go read the whole thing!  (I’ll be checking my click-through stats– don’t let me down).