Aug. 21
USA:
Wrongful Conviction in the American Judicial Process: History, Scope, and
Analysis
This paper addresses the historical, current, and projected scope of wrongful
convictions in the judicial process of the United States. Herein, numerous
research studies are reviewed in order to identify the trend of this problem,
determine its origin, and propose solutions. Specifically, the paper addresses
the implications of the expanding American custodial system and the decline in
homicide clearance rates necessary for the efficacy of the current justice
process. It further examines wrongful convictions as a social problem from an
interactionist perspective concerning racial and economic inequality and
considers the applicability of labeling theory therein. Finally, it identifies
the most prominent causes of wrongful conviction from a functionalist view and
offers recommendations toward addressing it in the future.
Most Americans harbor the presumption that their criminal justice system is
fair and blind. Within that a priori delusion, an assumption is made that no
person shall ever be convicted for a crime that he or she did not commit (Huff,
2002; Marquis, 2005). The idea that a free citizen could be unjustly sentenced
to prison or executed by the State is diametrically opposed to the concept of
judicious treatment expected in the United States. Indeed, audiences sympathize
with characters such as John Coffey (Michael Clarke Duncan) of "The Green Mile"
and Andy Dufresne (Tim Robbins) of "The Shawshank Redemption" because the
notion of wrongful incarceration is utterly terrifying, though ostensibly
quarantined to the realm of fiction (Darabont, 1994; 1999). Indeed, every
person living in the United States, citizen or not, is afforded the
constitutional rights of due process and a trial by a jury of their peers
wherein the State must prove beyond a reasonable doubt that the defendant is
guilty of a particular crime. This instrument is specifically designed to
protect the innocent, rather than obtain convictions (Anderson, 2005; Givelber,
2005). Schoolchildren are taught to have faith in the criminal justice system
and told that an innocent person has nothing to fear (Cross, 2005). Under such
an impartial system, is it not a virtual guarantee that only the wicked shall
suffer? Unfortunately, the judicial process has been plagued by eyewitness
misidentification, unfounded and improper forensic science, false confessions,
substandard lawyering, and governmental misconduct leading to myriad wrongful
criminal convictions (Rattner, 1988). Such revelations gnaw at the delicate
social fabric of democratic republicanism.
The American criminal justice system is based on the concept that wrongs have
causes, that such causes are preventable, and that injurious acts warrant
recompense to victims as well as punishment for offenders (Leo & Gould, 2009).
If the problem is to be addressed and rectified, it must first be understood;
not as it is perceived, but as it is. The relationship between wrongful
convictions and legal procedure is not one of simple cause and effect. Rather,
this problem represents a dynamic interaction between defendants and observers
wherein all parties play an active role. However, the wrongful conviction trend
has only been subjectively accepted by the general public to any measurable
degree within the past two decades (Huff, 2002).
A History of Wrongful Convictions in the United States
Judge Learned Hand said in 1923 that the American judicial system "has always
been haunted by the ghost of the innocent man convicted." He referred to the
notion of wrongful conviction as an "unreal dream" (Halsted, 1992; Huff,
Rattner, Sagarin, & MacNamara, 1986). Serious study of this phenomenon began
less than a decade after the judge made his innocuous statements. Contrary to
his honor's eloquent rhetoric, time and technology have revealed that an
unquantifiable number of wrongfully convicted persons have served prison
sentences and even been executed for crimes which were committed by others and
even some that never occurred (Huff, 2002). Herein, this paper addresses the
prison population explosion of the past 30 years and assesses the decline in
homicide clearance rates to ascertain the efficacy of the American judicial
process and identify the prevalence of wrongful convictions therein.
It is difficult to articulate the wrongful conviction trend and determine the
growth or recession of the problem. This is due to the unavoidable fact that a
wrongful conviction can only be unequivocally known to have taken place if the
offender has been subsequently exonerated by the same system which was
responsible for the initial error. Indeed, an appellate verdict of "not guilty"
does not inherently translate to innocence (Huff, 2002). Research into wrongful
convictions was virtually nonexistent until Professor Edward Borchard of Yale
University published his book Convicting the Innocent in 1932, which documented
65 such cases, addressed the legal causes of miscarriage, and offered
suggestions for reform. In subsequent decades, numerous researchers conducted
case studies and published findings which affirmed that wrongful conviction
represented a systematic problem within the American judicial process.
Nonetheless, legislators, law enforcement professionals, and the general public
remained unconvinced and blissfully ignorant. The contemporary innocence
revolution began with an article published by Bedau and Radelet in 1987.
Therein, 350 wrongful convictions, 23 of which had led to executions, were
identified and exposed (Leo & Gould, 2009). The public was immediately aroused
and haunted by the notion that the "unreal dream" of the innocent man convicted
was a harsh subjective reality. These revelations ushered in the modern history
of miscarriages of justice. The introduction of DNA testing to the courtroom
has certainly elevated the issue into public discourse. Gary Dotson became the
first prisoner to be exonerated by post-conviction DNA evidence in 1989. This
landmark case initiated the movement which has been responsible for overturning
more than 300 convictions to date. Once assumed to be a preposterous notion, 94
percent of recent poll respondents believed that innocent defendants are
sometimes executed via the American judicial process (Gould & Leo, 2010; Leo,
2005). Unfortunately, researchers will likely never know exactly how many
innocent defendants have lost their lives, or the better part of them, due to
miscarriages of justice (Zalman, Larson, & Smith, 2012).
In 2000, then-Governor George Ryan imposed a moratorium on the death penalty in
Illinois and expressed his outrage toward a flawed system wherein more death
row inmates had been exonerated than executed by the State (Leo, 2005). Shortly
thereafter, U.S. Senator Patrick Leahy introduced the Innocence Protection Act
and stated that miscarriages of justice come at a high social cost. Public
confidence in the judicial system is undermined, innocent people suffer, and
public safety is compromised because for every person wrongfully convicted
there is a real criminal who may still be roaming the streets (Blackerby, 2003;
Zalman, 2006). Contemporary estimates contend that perhaps as many as 7,500
persons arrested for index crimes are wrongfully convicted annually in the
United States, though there are no extant reliable statistics on the precise
incidence of miscarriages of justice (Huff, 2002; Zalman, Larson, & Smith,
2012).
Currently, the factual rate of wrongful conviction is believed to be as high as
5 % in rape-murder cases (Gould & Leo, 2010; Risinger, 2007). Nonetheless, many
researchers contend that recent case studies have only revealed the tip of the
proverbial iceberg (Huff, 2002). Scholars can hardly trend the history and
state of these miscarriages as modern developments in DNA technology have been
largely responsible for their identification through post-conviction
exonerations. Though, the issue is certainly perceived as worsening since
innocent people have recently been exonerated in droves (Krieger, 2011). A
recent survey study conducted by Zalman, Larson, and Smith (2012) revealed that
the vast majority of citizens believed that wrongful convictions occur at least
occasionally (55%) or frequently (20%).
The United States houses the largest national prison population in the world
with 7.1 million offenders under some form of correctional supervision. This
behemoth of a custodial system arrived at this nearly incomprehensible figure
following a four-fold prison population explosion which began in the 1980s; the
same decade which saw the birth of the modern innocence revolution (Schmalleger
& Smykla, 2009, p. 5). Much of this growth is attributable to zealous
enforcement of "War on Drugs" policies which have simultaneously criminalized
non-violent offenses and increased the likelihood of wrongful conviction
(Halsted, 1992). Notably, the national clearance rate for murder was over 90 %
in 1960. In subsequent decades, the rate of homicides cleared by arrest or
exceptional means gradually declined to just over 60 % by 2010.
Paradoxically, clearance rates for murder in metropolitan statistical areas
have declined almost perpetually with no demonstrable improvement for over half
a century; a trend which is not attributable to increases in police workloads
(Ousey & Lee, 2010). A plausible contributor to this decline in clearance rates
is that advancements in DNA and forensic technologies have added to the weight
of the State's burden of proof in serious felony cases, as indicated by the
fact that law enforcement professionals have actually cleared fewer murders and
forcible rapes than when DNA databases were in their infancy (Rothstein &
Talbott, 2006). Notably, post-conviction exonerations do not affect these data
since an arrest is sufficient to clear a case according to the Uniform Crime
Reports (U.S. Department of Justice: Federal Bureau of Investigation, 2011).
Thereby, it can be ascertained that the current legal system, which is
demonstrably incapable of operating with complete accuracy, has been unable to
sufficiently secure convictions using scientific evidence in cases which may
have otherwise resulted in miscarriages of justice.
Ostensibly, the data convey that the justice system operates with a very small
margin of error. Indeed, a few hundred miscarriages do not seem to represent a
major social problem when compared to a prison community equivalent to the
population of Hong Kong, China (U.S. Department of State, 2011). However, this
facade of precision is merely the byproduct of historic public faith in the
system and resultant indifference toward convicted offenders. The decline in
national clearance rates serves as evidence that jury members are no longer
content to make decisions in the absence of DNA and forensic data. Indeed,
scientific experimentation has affirmed that historical clearance rates were
most likely the inflated and fictitious remnants of an era before technology
entered the courtroom (Rothstein & Talbott, 2006). Therefore, wrongful
convictions are not aberrations, but consequences of the normal operations of a
flawed system (Siegel, 2005). Consequently, nearly every U.S. state has adopted
a legal statute which allows access to post-conviction DNA testing (Steinback,
2007).
Wrongful Convictions from an Interactionist Perspective
Labeling theory proposes that acts are not inherently criminal. Rather,
criminality is determined by the audience which labels the person and his or
her acts (Leon-Guerrero, 2011, p. 347). Accordingly, deviance is largely
determined by the cognitive representations harbored by observers. Prior to the
advent of modern forensics, convictions weighed heavily on eyewitness testimony
and other fallible factors. Jackiw, Arbuthnott, Pfeifer, Marcon, and Meissner
(2008) analyzed the first 130 cases of post-conviction DNA exoneration.
Therein, they affirmed that 78 % of the original wrongful convictions had
resulted wholly or in part from mistaken eyewitness identification.
Accordingly, they concluded that observers' recollection of events is often
inaccurate and incomplete. Very often, these memories are formed out of an
informal reasoning fallacy, the argument from ignorance, as the observers'
minds attempt to make sense of the events by simply filling in what "probably"
happened in accordance with their own preconceived notions; especially
concerning members of minority groups identified by caucasian witnesses and
victims (Oaksford & Hahn, 2004). The cross-racial misidentification phenomenon
is at least partially responsible for the trend in exonerations of minority
defendants in felony cases (Aaronson, 2008).
As with many social problems, particularly those concerning the justice
process, race is an omnipresent factor in wrongful conviction. Scholars have
speculated that African-Americans are disproportionally targeted by the
criminal justice system (Taslitz, 2006; Zalman, Larson, & Smith, 2012). For
instance, nearly 90 percent of offenders executed for rape convictions since
1930 were African-American. Prosecutors are more likely to move forward with
comparably weak cases against minority defendants. Consequently, non-caucasians
defendants are often convicted for having killed caucasians victims based on
significantly less evidence than in similar cases with caucasians defendants.
As a result, 6 times more African-Americans have been exonerated from capital
sentences than caucasians defendants; indicating that African-Americans are far
more likely to be wrongfully convicted during their initial trials.
Given that African-Americans make up 13 % of the United States' population and
one-third of its prison community, but are wrongfully convicted at such a
staggering rate, labeling theory suggests that the majority of individuals
involved in capital trials simply perceive minorities to be more deviant
(Harmon, 2004). The findings from Chambliss' (1973) classic "The Saints and the
Roughnecks" certainly apply herein. Caucasians in this instance are more
resistant to the criminal label than are minorities (Leon-Guerrero, 2011,
p.347). Undoubtedly, socioeconomic status is inextricably linked to racial
inequality as over 1/4 of the African-American community lives in poverty
(Leon-Guerrero, 2011, p. 44; U.S. Census Bureau, 2011). As noted by Crone
(2011), one consequence of this disparity is that those in higher social
classes benefit from an increasing number of opportunities, such as private
attorneys (p.55). Accordingly, researchers have affirmed that the use of public
or private defenders plays a significant role in miscarriages of justice
(Blackerby, 2003; Gould & Leo, 2010; Huff, 2004).
Identifying Causes and Proposing Solutions
Though media attention has dwindled in recent years, most criminal justice
professionals are conscious of the wrongful conviction trend. Moreover, recent
documentaries and television series have launched the issue into the public eye
(Campbell & Denov, 2004). Policy makers have been berated with demands for
improved legislation and oversight, particularly regarding capital cases, while
advocacy agencies have pushed for the forensic re-examination of cases which
were decided before the technology became available; which has led to a
substantial backlog of defendants (Siegel, 2005). Since the fairness of our
judicial system is often taken for granted, wrongful conviction may soon be
subjectively perceived as a threat to our cherished legal institution without
timely intervention.
Previous research has identified the root causes of wrongful conviction as well
as its purpose. From where did this trend emerge? Miscarriages are the result
of decades of "tough on crime" initiatives advocated by politicians in their
quest to appease the masses and public trust in the equitable delivery of
justice. Subsequently, courtroom actors neglected the State's burden of proof
in favor of erring on the side of caution and ultimately, though unwittingly,
opened the door to misconduct (Rattner, 1988). Moreover, the disproportional
treatment of minorities is evidence that the civil rights movement has not yet
reached the top of the mountain; bias remains in the courtroom (Harmon, 2004;
Taslitz, 2006). What function does this problem serve? Contemporary juries now
come to court with high expectations regarding DNA and forensic evidence. The
initial surge of post-conviction exonerations is nearing its end, though it has
revealed systematic flaws in the judicial process which have been ignored for
decades (Bowman, 2008).
Eyewitness misidentification has been identified as the most prevalent cause of
wrongful conviction (Clark & Godfrey, 2009; Rattner, 1988). Notably, a
misidentification can result in the wrongful conviction of an innocent person
as well as prompt police investigators to stop looking for the real offender.
Theoretical analyses into eyewitness memory and identification have mostly been
conducted by social and cognitive psychologists (Leo, 2005). Nonetheless,
criminal justice professionals have learned practical lessons from these data.
For instance, the use of double-blind lineup procedures was first mandated by
the State of New Jersey and has since been adopted by numerous, though not
most, law enforcement agencies. Therein, the officer administering the lineup
does not know the identity of the suspect.
Additionally, sequential photo arrays, wherein each photo is shown one time to
prevent comparative analyses, have been implemented as a best practice
(Garrett, 2012). Moreover, Weber and Perfect (2012) affirmed that free-report
decisions made by witnesses were most accurate, especially when an explicit
don't know option was permitted, and had no negative influence on the number of
correct decisions. Therefore, witnesses should be informed that the guilty
party may not be present in the lineup and not required to answer definitively
when presented with suspects for identification. The results, to include the
witnesses' certainty at the time of identification should be recorded.
Additionally, model jury instructions should direct jurors not to rely solely
on the "confidence level" of any eyewitness in the absence of more convincing
evidence (Garrett, 2012). If these procedures are followed, eyewitness
identifications will be much more reliable and remove ambiguity at trial. This
simultaneously reduces the likelihood of wrongful conviction and improves the
overall cogency of the State's case.
A confession is arguably the most damaging evidence that can be brought against
a defendant in a court of law. Ostensibly, it seems reasonable to assume that
one would only confess to a crime that he or she had actually committed.
However, in the United States, false confessions may result in nearly 400
wrongful felony convictions annually (Cassell, 1998). Leo (2005) affirmed that
false confessions, to include guilty pleas, were present in 25 % of wrongful
conviction cases. Notably, such confessions were disproportionately
concentrated in cases of serious violent crime and capital offenses. A full 2/3
of post-conviction DNA exoneration homicide cases involved false confessions.
In 8 post-conviction DNA exoneration cases, false confessions resulted in
conviction despite exclusionary forensic evidence presented at the trials. One
is compelled to question the differences in interrogation methods utilized by
investigators according to the severity of the crime. In numerous wrongful
conviction cases, the defendants were mentally ill and/or juveniles. Many were
interrogated for several hours and reported being threatened or physically
coerced by investigators (Garrett, 2012).
Nonetheless, this pervasive contributor to wrongful convictions can be easily
remedied. Most importantly, all interrogations should be recorded in their
entirety to improve the reliability of confessions as evidence (Huff, 2002).
Over 750 law enforcement agencies have adopted this practice voluntarily.
Prosecutors and investigators often welcome such policy changes as they
generally result in fewer motions to suppress and reduce claims of abuse.
Provided that these recordings are reviewed by a judge prior to trial, this
practice protects the innocent and aids in prosecution (Garrett, 2012).
The criminal justice system is comprised of individuals who are incentivized by
their own personal responsibilities and goals which can conflict with those of
other actors within the system. Consequently, post-conviction exonerations have
exposed unethical behavior at every stage of the judicial process (Huff, 2002;
Rattner, 1988). Accordingly, it would be disingenuous to address the wrongful
conviction phenomenon whilst ignoring the prevalence of governmental
misconduct. Police investigators have repeatedly been found to have coerced
confessions and witness identifications, mislead jurors regarding their
observations, intentionally withheld exculpatory evidence from prosecutors, and
provided compensation to informants for unreliable evidence. Similarly, state
prosecutors have mishandled or destroyed evidence as well as withheld it from
the defense, pressured witnesses, and relied on fraudulent forensic "experts"
whose opinions are based on compensation (Garrett, 2012; Gould & Leo, 2010).
This behavior, while abhorrent, is likely to continue unless legislators can
overcome a fundamental problem; investigators and prosecutors are generally
rewarded based upon the number of cases solved and convictions obtained. Viable
quality assurance measures must be adopted in order to ensure the accuracy of
investigations in identifying the guilty (Gould & Leo, 2010; Martin, 1998).
Moreover, real consequences must be implemented for those who engage in
misconduct (Gould, 2008). Anyone shown to have knowingly or recklessly
contributed to the conviction of an innocent person should be subject to a
legal public response. Potential repercussions should include the revocation of
attorneys' licenses to practice and law enforcement officials' peace officer
certifications in addition to criminal charges and/or civil suits (Huff, 2002).
Conclusion
Research conducted in the years since Bedau and Radelet's watershed study has
revealed the once majestic American judicial system to be as fallible as the
humans who comprise it. Previously content with presumptive faith in justice
and inflated clearance rates, legal professionals have acknowledged the
necessity for reform within this cherished institution. Legislators and
politicians have largely accepted the empirically-supported criticism and
adopted policies which aim to prevent miscarriages of justice. Technology has
afforded us the opportunity to identify systematic flaws and reduce the
negative impact of the human errors that contribute to wrongful conviction;
such as eyewitness misidentification, false confessions, and misconduct.
Additional miscarriages will undoubtedly be revealed in the future as advocacy
agencies continue to represent and support the innocent. Simultaneously, local
and state governments, along with law enforcement agencies, should continue to
embrace improved lineup, interrogation, and evidence handling procedures. This
process promises to be wrought with humbling and uncomfortable revelations as
more inadequacies are brought to light. Eventually, the innocent man convicted
will become a rarity in the American justice system.
--------------------------------------------------------------------------------
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****************************
Suspect in Northwest crime spree to be returned to Oregon
An alleged white supremacist accused of joining her boyfriend in a multi-state
crime spree that left 4 people dead will be returned to Oregon to face federal
racketeering charges.
Holly Ann Grigsby, 25, appeared this afternoon in U.S. District Court in
Seattle and agreed to be transferred to Portland where she is under federal
indictment.
Grigsby and her boyfriend David Joseph "Joey" Pedersen, 32, are accused of
promoting and funding a movement to "purify" and "preserve the white race"
through murder, according to a 15-count indictment unsealed Friday in Portland.
Federal prosecutors say Pedersen and Grigsby funded their white-power movement
with credit cards stolen from their victims, and used their stolen cars to
travel from one state to another.
Grigsby and Pedersen are from Oregon.
The pair is accused of killing Pedersen's father, David "Red" Pedersen, and
stepmother, Leslie "DeeDee" Pedersen, on Sept. 26 in Everett. They're also
accused of killing 2 men in Oregon and California in the following week.
Grigsby told police they shot the Oregon man "because his last name made them
think he was Jewish," according to charging documents. The California victim
was black.
After their arrests, Grigsby and Pedersen expressed white-supremacist beliefs
in media interviews. According to court documents, Pedersen has a tattoo of a
swastika on his chest above his heart and an image of Adolf Hitler on his
stomach. The initials "SWP," for Supreme White Power, are tattooed on his neck.
The indictment exposes Pedersen and Grigsby to a possible federal death
penalty.
Pedersen is already serving life without parole at the Monroe Correctional
Complex after pleading guilty to the slayings of his father and his stepmother.
Grigsby was facing trial for the homicides in Snohomish County Superior Court,
but Prosecuting Attorney Mark Roe said he will dismiss the state charges
against Grigsby now that the federal indictment has been issued.
(source: Seattle Times)
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