Innocence, even after “proven” guilty

We need to be sure that every single person we are imprisoning should actually be there. We should not be imprisoning people because they can’t pay a fine or can’t afford adequate representation. And our society certainly shouldn’t be imprisoning innocent people.

A 2014 study published in The Proceedings of the National Academy of Sciences estimated that about 1-4% of U.S. death row inmates are wrongfully convicted.

At least one of its authors believe that this may mean tens of thousands of Americans have also been wrongfully imprisoned on lesser charges.

The average time served for the 1,625 exonerated individuals in the registry is more than nine years.
How many people are convicted of crimes they did not commit? Last year, a study I co-authored on the issue was published in the Proceedings of the National Academy of Sciences. It shows that 4.1 percent of defendants who are sentenced to death in the United States are later shown to be innocent: 1 in 25.

Death sentences are uniquely well-documented. We don’t know nearly enough about other kinds of criminal cases to estimate the rate of wrongful convictions for those. The rate could be lower than for capital murders, or it could be higher. Of course, in a country with millions of criminal convictions a year and more than 2 million people behind bars, even 1 percent amounts to tens of thousands of tragic errors.

While some members of the public may be concerned about the possibility of guilty people walking free, this concern should be addressed by increasing public resources for investigations and prosecutions of unsolved crimes or crimes with insufficient evidence, rather than by erring on the side of wrongful imprisonment.

death-penaltyThere can be no justice in a justice system that frequently imprisons the wrong people because of poor or non-existent representation, racism, or other factors. Nor does wrongful imprisonment keep us safe, given that it may mean a real offender is instead walking free to commit new crimes.


December 2, 2015 – Arsenal For Democracy Ep. 152

Posted by Bill on behalf of the team. End notes written by Kelley.


Topics: Big Ideas for Reforming American Governance — Criminal Justice and Prison Reform. People: Bill, Kelley, Nate. Produced: November 29th, 2015.

NOTE: Our show is now officially on hiatus until September 2016; details at the end of the episode. Thank you all for listening.

Episode 152 (51 min):
AFD 152

Discussion Points:

– Overburdened courts and public defenders
– Systemic, compounding racial bias in the criminal justice system: Arrest, representation, pleas, juries, sentencing, parole
– Mandatory minimums: What went wrong?
– The purpose of prisons: Inmate storage or rehabilitation?
– The economics of prisons: Let’s build local economies not dependent on prisons
Read more

Justice for all, no matter the cost

If any part of our governmental system should always be fully and generously funded, it is our judiciary, from bottom to top. Everyone accused of a crime, large or small, should have the right to access meaningful and prompt justice. That shouldn’t depend on their income or their geographic location.


The dismantling of the country’s public defender system to save money and coerce speedy pleas has made a mockery of the phrase “justice system.” It’s similarly disturbing to me when I hear about places across our country (and even in Massachusetts) where states are moving to “consolidate” their court systems, not for the sake of improving the justice system but for the sake of cutting costs. I believe nobody should be denied true justice and a fair procedure simply because they lack the funds for bail or for a qualified attorney or because they live far away from courts.

I also believe nobody should be rushed and badgered into pleading out on something they didn’t do simply because the courts and public defenders are overloaded. If our justice system is overloaded, we need to expand it and properly fund it. Yes that means hiring more people and buying or building more facilities. But a legitimate and fair justice system, with justice for all, doesn’t necessarily come cheap. Our judiciary should be the last place in government we make cuts or try to under-fund.

If you were in a position of being charged with a crime you didn’t commit and you didn’t have the resources for expensive attorneys, you know you wouldn’t want to be railroaded through a cash-strapped court system. So let’s make sure that doesn’t happen to anyone else, either — by funding our courts properly and ensuring they have the capacity to deliver true justice.

Criminal justice and prison reform


Prisons, like many institutions under our governance system, should not be privately owned or operated. Corrective rehabilitation or lifetime imprisonment are public functions — the role of society as a whole to be implemented by the instrument of our government. They should not, therefore, be privately handled. I don’t believe we should be introducing private profit motives into public functions. That distorts public policy with the goal of making money off of it, rather than doing it in the best and most responsible manner.

That is particularly vital in the context of our correctional system. We need to be finding ways to reduce revolving-door recidivism and keep people out of our jails and prisons in the first place. That’s much a better course of action than finding ways to make a buck off their internment whether by volume of inmates or cheaper treatment. Part of “doing time” for lower-level offenses should be about learning from mistakes and learning ways to be a more productive and positive citizen. It should not be about getting traumatized and abused (whether publicly or privately) every day for an arbitrary number of years and then turned loose for a brief span before re-arrest.

We also need to be sure that every single person we are imprisoning should actually be there. We should not be imprisoning people because they can’t pay a fine or can’t afford adequate representation, and we certainly shouldn’t be imprisoning innocent people. We need a judicial system that is both speedy and fair to accused and victims alike. We have a fairly adversarial system of criminal law in this country, but we need fair-minded judges who are trying to achieve justice for all — not trying to be “tough on crime” for its own sake. They should be the last line of defense for anyone caught in the middle of a system bigger than themselves.

President Obama stands up for second chances

Last week, on Monday, July 13th, President Obama announced that he would commute the sentence of 46 Federal prisoners, non-violent drug offenders who he believed were serving punishments disproportionate to their crime.

In his Facebook video to explain his decision, the President noted:

“These men and women were not hardened criminals, but the overwhelming majority had been sentenced to at least 20 years.

I believe that at its heart, America is a nation of second chances. And I believe these folks deserve their second chance.”


Barack Obama signing clemency grants to convicted non-violent drug offenders with disproportionate sentences, July 2015. (Credit: The White House)

Barack Obama signing clemency grants to convicted non-violent drug offenders with disproportionate sentences, July 2015. (Credit: The White House)

Obama’s decision is not a singular event, but part of a series of events throughout his presidency aimed at bringing awareness to some of the broken parts of the American criminal justice system.

Since taking office, Obama has commuted 89 men and women serving time, 76 of whom were nonviolent drug offenders.

On Tuesday, July 14th, President Obama addressed the NAACP on the need for reform in our criminal justice system.

The Marshall Project notes, “no sitting president has ever publicly spoken at such length and in such detail as Obama now has about the persistent problems of crime and punishment in this country.”

Obama’s no-holds-barred speech touched upon everything from the over-sentencing of non-violent drug offenders to racial injustices in the criminal justice system to the school-to-prison pipeline to the detriments of solitary confinement.

He offered specific and necessary reforms to improve our criminal justice system, such as lowering or eliminating mandatory minimums and addressing crime prevention at the community level. (Check out more details here.)

Then, on Thursday, July 16th, Obama became the first sitting president to ever visit a Federal prison. There, he met with six, non-violent drug offenders who explained their hopes for the future and the obstacles they’ll have to overcome as they eventually re-enter American society.

Obama’s recent push to call attention to the failings of our justice system may just be working.

While there is still a wide divide between philosophies on justice and a general overuse of rhetoric which calls for politicians to be “tough on crime”, there is currently bipartisan support for bills in the House of Representatives and the Senate which would reduce the number of low-level drug offenders in prison by reforming prison sentencing and creating pathways for early release.

During his speech to the NAACP, Obama made an impassioned plea that all Americans should pay attention to if they desire to make common sense changes to make our criminal justice system more fair and effective.

“While the people in our prisons have made some mistakes, and sometimes big mistakes, they are also Americans. And we have to make sure that as they do their time, and pay back their debt to society, that we are increasing the possibility that they can turn their lives around.”


The iron fist of the American prosecutor

The Economist has published a very comprehensive article on “How prosecutors came to dominate the criminal-justice system” in the United States. It’s absolutely worth reading. It looks at mandatory minimums, plea bargaining under threat of insanely huge sentences, “cooperating witnesses” (who have a strong self-interest incentive to lie in court to help prosecutors), threatening to indict witnesses who help the defense, prosecutors seeking celebrity and elected office, illegal withholding of evidence to the defense, excessive caseloads in the court system discouraging trials in favor of pressuring pleas, and more.