No way to know

According to a New York Times article, the general consensus is that there is no way to know how many innocent people are currently serving time or on death row. While that is not really a new revelation, the fact that at least one member of the US Supreme Court seems to see no need for reform within our justice system is disturbing news to me.

A couple of years ago, Justice Antonin Scalia, concurring in a Supreme Court death penalty decision, took stock of the American criminal justice system and pronounced himself satisfied. The rate at which innocent people are convicted of felonies is, he said, less than three-hundredths of 1 percent — .027 percent, to be exact.
That rate, he said, is acceptable. “One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly,” he wrote. “That is a truism, not a revelation.”

Now call me an idealist, but I consider even one innocent person having years of their life taken away, or being put to death for a crime they didn't commit to be a serious problem that shouldn't be light-heartedly dismissed in an effort to seem tough and intellectual. But my philosophical disagreements aside, Scalia's math is decidedly fuzzy. As Mr. Liptak and the Innocence Blog both point out, Judge Scalia is getting this .027 statistic by using the discredited methodology of dividing an estimate of the number of exonerated prisoners, almost all of them in murder and rape cases, by the total of all felony convictions.

As [University of Michigan law professor Samuel]Gross points in a recent law review article: “By this logic, we could estimate the proportion of baseball players who’ve used steroids by dividing the number of major league players who’ve been caught by the total of all baseball players at all levels: major league, minor league, semipro, college and Little League — and maybe throwing in football and basketball players as well.”

Applying more logical methods, Gross estimates the rate of wrongful conviction of death row cases to be more along the lines of 2.3% to 5%. A recent study of randomly selected cases in Virginia showed a possible rate of 9%. The Innocence Project states the rate could be even higher due to the fact that many crimes are not always dependent on biological evidence and therefore it is harder to prove someone's innocence.

The Innocence Project has always said that DNA exonerations are just the tip of the iceberg, since only 5-10% of all criminal cases involve biological evidence that can be subjected to DNA testing (and even in those cases, the evidence is often lost, destroyed or too degraded to yield results in DNA testing). But the 215 wrongful convictions overturned to date by DNA testing illustrate the broader causes of wrongful conviction and show the need for reforms that can prevent injustice.

Despite the possibility that, even if the low number of 2.3% is applied, over the last three decades 185,000 people have spent time in jail or been killed for crimes they did not commit, Justice Scalia remains optimistic, writing:“Reversal of an erroneous conviction demonstrates not the failure of the system but its success.” He seems happy to ignore the fact that without the tireless efforts of groups like the Innocence Project these erroneous convictions would probably never be discovered by the "system" he so praises.