SIGN IN to access Harper’s Magazine
1. Sign in to Customer Care using your account number or postal address.
2. Select Email/Password Information.
3. Enter your new information and click on Save My Changes.
Subscribers can find additional help here. Not a subscriber? Subscribe today!
This week has been full of illuminating disclosures concerning the American criminal-justice system. Last Monday, a Columbia Law School project showed convincingly that Carlos DeLuna, executed for homicide by the state of Texas in 1989, was innocent of the crime; the project also showed who actually committed the crime. The revelation was shocking in part because DeLuna’s name had never figured among the dozen or more prisoners executed by Texas whose guilt has been vigorously and publicly contested; even his own lawyers seemed to have assumed his guilt.
Four days later, news broke in the case of Cameron Todd Willingham—executed by Texas in 2004 for murders, dubbed the “Texas witch trials,” that involved bizarre allegations of occultism related to the defendant’s love of heavy-metal music—when a state district-court judge reviewing the case concluded that Texas had wrongfully convicted and executed Willingham. The judge, who cited “overwhelming, credible and reliable evidence” presented at a hearing in October 2010, prepared an order of posthumous exoneration, but its issuance was effectively blocked by a state appellate court, which criticized the continued exploration of the Willingham case.
Now, a joint project by students and faculty at the University of Michigan and Northwestern University law schools has assembled the details (.pdf) of more than 2,000 exonerations since 1989. The ABA Journal article on the report notes:
873 exonerations from 1989 through March 1, 2012 [were examined] in close detail, of which nearly half were wrongly convicted of murder. Of those, 101 were sentenced to death.…
In half of the 873 detailed exonerations, 43 percent of the cases involved mistaken eyewitness identification, and 24 percent of the cases involved false or misleading forensic evidence. Researchers also noted 1,170 individuals cleared in “group exonerations” related to 13 police-corruption scandals across the country, the Columbus Dispatch reports. It took an average of 11 years, from conviction to exoneration, for wrongfully convicted people to be cleared.
The cities with the most exonerations were Chicago and Dallas—but should not necessarily be taken as evidence of a wrongful-conviction problem in those two cities. Rather, their rankings point to the fact that special projects were launched in both cities to review dubious convictions—often making use of new DNA-evidence techniques—after scandals exposed corruption involving police and prosecutors. Similar scandals erupted in other jurisdictions, notably New Orleans, but no special review efforts took place.
CBS News legal commentator Andrew Cohen asks the obvious question prompted by the report:
How does this happen? Why are there so many wrongful convictions when there is so much at stake for both the defendants and the victims and when we pride ourselves on a legal system designed to ensure meaningful judicial review? The reasons are legion. It matters where you are convicted, for example, and the color of your skin matters too. And it matters who your police and prosecutors and judges are. The report reveals that in a whopping 56 percent of murder-case exonerations the initial convictions was based upon “official misconduct.”
It isn’t surprising that the system misfires—judges, prosecutors, and jurors are human, and thus fallible. Indeed, the 2,000 instances of exoneration documented by the study are undoubtedly only a sampling of the false convictions produced by the nation’s criminal-justice system since 1989—they are simply the misfires the system itself has acknowledged. Unfortunately, our system is highly resistant to recognizing such misfires. The data therefore serve to highlight those judicial defenders of capital punishment who insist, as Antonin Scalia has put it, that “capital cases are given especially close scrutiny at every level”—an observation that could only be made by someone who is either woefully ignorant about the actual process or determined to shill for it.
Judicial reticence about exonerations and support for capital punishment rest, at their core, on hollow professions of certitude about case results, coupled with two other considerations. The first is an economically driven perspective that views process as a sort of metered utility, arguing that society can expend only so much time and effort on court activities before reaching a remedy and bringing the proceedings to a conclusion. This view has been applied with special vigor to capital-punishment cases, which in the view of conservatives require far too much judicial time and energy. The second consideration relates to confidence in the criminal-justice system. It argues that once a final conviction has been pronounced, it should not be unsettled lest that confidence be undermined. But this view essentially confuses justice with the vanity of its human actors, especially those prosecutors and judges who fear the embarrassment associated with being proven wrong (a trait which is itself disqualifying of a good prosecutor or judge).
The Michigan–Northwestern exoneration database provides another powerful tool for understanding a badly flawed criminal-justice system. Legislatures, prosecutors, and courts must be challenged to extract from it a clearer understanding of the system’s weaknesses, and to accept with humility the compromised role they have thus far played.
Another phenomenon merits notice here, too: In the war-on-terrorism detention cases, students at dozens of law schools across the United States (led by Seton Hall) played a critical role in disclosing abuse and misconduct by American government actors. Likewise, death penalty and innocence projects have been fueled by the extraordinary diligence of students at Columbia, Michigan, Northwestern, and many other universities. It is remarkable to contrast the complacency and self-satisfaction of many figures at the highest echelons of our legal system with the relentless questioning and demands for improvement from students who are committed to their ideals.
More from Scott Horton:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Amount three New York men owe in restitution for stealing rock lobsters off the coast of South Africa:
AIDS researchers were working to develop genetically modified tomatoes that naturally produce an edible HIV vaccine.
Trump said that he might not have been elected president “if it wasn’t for Twitter."
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."