Reading this book reminded me of an incendiary case my father (a defense attorney) handled when I was a child in the early 1960s. In a rural, southern community, an African American man was convicted of raping a white woman. In utter disbelief, he maintained his innocence throughout the trial and my father, who firmly believed in him, appealed his case. While awaiting the appeal results in prison, another man (an identical, non-familial twin) confessed to the crime and extremely discomfited the surviving victim who was an eyewitness to the crime and who had sworn under oath that my father’s client was the perpetrator. Because members of my family were temporarily treated as "outcasts" in the community due to my father’s vigorous defense of an accused rapist, I never forgot this client or the lesson it taught me about "the system." Its propensity for destructive error as well as the costs it may inflict on the innocent have created my everlasting healthy skepticism.
A tour de force on wrongful conviction, this book provides a comprehensive examination of questions associated with wrongful conviction such as why and how it happens, to whom it happens, how to prevent it and how to compensate the wrongfully convicted. The authors also make a major effort to estimate the annual incidence of wrongful conviction in the United States. To answer their research questions, the authors employ a variety of methodological tools to investigate the questions they raise including: (1) previous research and survey data on the magnitude of the problem, (2) interviews with wrongly convicted individuals as well as actors connected to the judicial system, and (3) case studies of wrongful convictions with trial documents, court transcripts and media reports.
The book is rich in detail and stimulating. Its authors address an issue that reflects on how discretion is exercised throughout the criminal justice system--an issue of grave concern for every student of the judicial process. They estimate that .5% (or approximately 10,000) of all convictions per year in the United States are wrongful. If their estimate is reliable, many who are currently incarcerated for wrongdoing are actually innocent. Arguing that reducing wrongful convictions will increase confidence in the criminal justice system, increase the "true" conviction rate and prevent actual offenders from further victimizations, the authors make a forceful case for why this is a significant public policy concern.
The heart of the book defines wrongful conviction and then explains how and why it occurs. Excluding from their definition of wrongful conviction those found not guilty in a second trial or on appeal, the authors instead define it as convicted persons who did not commit the crimes alleged (or the behaviorally innocent, rather than the procedurally innocent). Chapter 2 recites numerous celebrated cases where individuals were accused, convicted and later found behaviorally innocent. These include Bruno Hauptmann, Randall Adams, Leo Frank, the Scottsboro boys and many others.
Chapter 3 explains how these wrongful convictions could happen. With an emphasis on the first three factors, they attribute wrongful convictions to eyewitness error, police errors, prosecutorial misconduct or overzealousness, overuse of plea bargaining, inadequate counsel, community pressure for a conviction, racial discrimination, false accusations and a prior criminal record. Chapters 4 and 5 provide a more detailed examination of the problems with eyewitness identification and the reasons behind false confessions.
Drawing on Herbert Packer’s crime control and due process models, the authors explain that paradoxically those parts of our criminal justice system that emphasize crime control (such as plea bargaining) may actually lead to systematic errors, such as wrongful conviction, and therefore corrupt the ultimate objective. One of Packer’s important distinctions--the difference between legal and factual guilt--represents a basic premise in our system of justice; that is, the adversary system can tolerate factual errors but not legal ones. For example, although eyewitness misidentification is a factual error, it becomes a problem if a legal error results (i.e. conviction of the innocent).
The last chapter, "Wrongful Conviction and Public Policy," is a cornucopia for policy wonks as it explains and justifies various policy proposals aimed at reducing the number of wrongful convictions. These are: (1) rely more on community based corrections: (2) educate the public about wrongful conviction and its implications; (3) hold pretrial conferences on the validity of eyewitness testimony when it is the sole evidence; (4) require expert testimony and special cautionary instructions to juries when eyewitness testimony is involved; (5) mandate police investigations of all eyewitnesses and victims immediately after a crime occurs to reduce distortion; (6) disallow identifications when the defendant’s attorney is absent; (7) train the courtroom workgroup about the causes, implications and ways to prevent wrongful conviction; (8) subject those who engage in misconduct by distorting evidence to the most severe civil and where appropriate criminal penalties; (9) conduct reviews of individuals (law enforcement, prosecutors and defense attorneys) involved in wrongful convictions; (10) enact through state legislatures financial compensation and socioeconomic reintegration legislation for the wrongfully convicted; (11) grant new trials and post conviction remedies when reasonable concerns about errors exist and (12) abolish the death penalty in favor of life sentences for first degree murder.
Overall, the book represents a heroic effort and is a major contribution to the field of criminal justice policy. Yet, there are some minor criticisms that the authors have considered in part but might to reconsider as they (hopefully) continue this line of inquiry. For example, one might quibble with the authors over their definition of wrongful conviction, which eliminates those who are found procedurally innocent. They argue that there is a difference between being found "not guilty" according to the rules of the adversarial proceeding and being acquitted on appeal. They claim that complete exoneration can not be inferred under such circumstances (as in the case of Claus von Bulow). Their assumption is that unless complete innocence is established, a wrongful conviction did not occur. This is problematic because numerous criminal cases involve large gray areas of factual uncertainty and the accused may never be able to establish "complete innocence," even if exonerated in criminal court (like O.J. Simpson). It may not be possible to always draw a hard and fast line between those who are factually guilty versus those who are legally guilty.
Another minor critique of the study centers around how the authors estimated the prevalence of wrongful conviction. They use Ohio as their baseline for making the estimate and they provide a reasonable explanation for why they did this. Still, it would have been preferable to incorporate two or three other states in the study to increase the accuracy of the estimate. The entire database and their rationales for how the estimate was developed is somewhat convoluted and might be confusing for a student audience. Overall, however, their discussion is well reasoned and creative.
Although well documented with appropriate sources, there were two very well known sources who were not included. Bennett L. Gershmann, a law professor at Pace University, has written extensively on prosecutorial misconduct and its impact on the judicial system. In addition, James McCloskey, a crusader for the wrongfully convicted, was not mentioned. These oversights, placed in context, were small but noticeable to someone who is also very interested in the questions raised by the authors.
In conclusion, the authors tackle significant and difficult questions about wrongful convictions. They utilize a combination of methodologies that suitably address these questions and they put forward well-reasoned answers and justifications. Unlike some who simply raise red flags and leave the prescription to someone else, the authors valiantly make recommendations and try to find ways to prevent these errors which can have such deleterious effects on the lives of innocents. I enthusiastically recommend these books to academicians, students and those involved in the administration of justice.
