The stories of innocent people being released after serving years or even decades behind bars have become old hat now. We hardly bother to get excited.
When handsome and articulate Francisco “Frankie” Carrillo was released in Los Angeles this past March after spending 20 years in prison for a murder he didn’t commit, there were some short articles here and there, but nothing big. His is a great story, that will likely become a book. But the 37-year-old’s circumstances are no longer unusual.
To date, there have been 271 post-conviction DNA exonerations in United States history. There are piles of other cases where DNA strongly suggests innocence but does not conclusively prove it. And then there are all the cases, like Carrillo’s, where no DNA is involved, but new evidentiary facts come to light and/or prosecutorial misconduct is uncovered, that results in exoneration.
So how many innocent people are right now still languishing in our American prisons?
That question is the subject of an excellent article by Radley Balko in the July issue of Reason Magazine.
Here are a few clips:
In a 2007 study published in the Journal of Criminal Law and Criminology, the Seton Hall law professor Michael Risinger looked at cases of exoneration for capital murder-rapes between 1982 and 1989, compared them to the total number of murder-rape cases over that period for which DNA would be a factor, and estimated from that data that 3 percent to 5 percent of the people convicted of capital crimes probably are innocent. If Risinger is right, it’s still unclear how to extrapolate figures for the larger prison population. Some criminologists argue that there is more pressure on prosecutors and jurors to convict someone, anyone, in high-profile murder cases. That would suggest a higher wrongful conviction rate in death penalty cases. But defendants also tend to have better representation in capital cases, and media interest can also mean more scrutiny for police and prosecutors. That could lead to fewer wrongful convictions.
In a study published in the Journal of Criminal Law and Criminology in 2005, a team led by University of Michigan law professor Samuel Gross looked at 328 exonerations of people who had been convicted of rape, murder, and other felonies between 1989 and 2003. They found that while those who have been condemned to die make up just 1 percent of the prison population, they account for 22 percent of the exonerated. But does that mean capital cases are more likely to bring a wrongful conviction? Or does it mean the attention and scrutiny that death penalty cases get after conviction—particularly as an execution date nears—make it more likely that wrongful convictions in capital cases will be discovered?
[ SNIP]
Even if we were to drop below the floor set in the Risinger study and assume that 2 percent of the 2008 prison population was innocent, that would still mean about 46,000 people have been convicted and incarcerated for crimes they didn’t commit.
[BIG SNIP]
Whatever the total number of innocent convicts, there is good reason to believe that the 268 cases in which DNA evidence has proven innocence don’t begin to scratch the surface. For one thing, the pace of these exonerations hasn’t slowed down: There were 22 in 2009, making it the second busiest name-clearing year to date. Furthermore, exonerations are expensive in both time and resources. Merely discovering a possible case and requesting testing often isn’t enough. With some commendable exceptions, prosecutors tend to fight requests for post-conviction DNA testing. (The U.S. Supreme Court held in 2009 that there is no constitutional right to such tests.) So for now, the pace of genetic exonerations appears to be limited primarily by the amount of money and staff that legal advocacy groups have to uncover these cases and argue them in court, the amount of evidence available for testing, and the willingness of courts to allow the process to happen, not by a lack of cases in need of further investigation.
It’s notable that one of the few places in America where a district attorney has specifically dedicated staff and resources to seeking out bad convictions—Dallas County, Texas—has produced more exonerations than all but a handful of states. That’s partly because Dallas County District Attorney Craig Watkins is more interested in reopening old cases than his counterparts elsewhere, and partly because of a historical quirk: Since the early 1980s the county has been sending biological crime scene evidence to a private crime lab for testing, and that lab has kept the evidence well preserved. Few states require such evidence be preserved once a defendant has exhausted his appeals, and in some jurisdictions the evidence is routinely destroyed at that point.
“I don’t think there was anything unique about the way Dallas was prosecuting crimes,” Watkins told me in 2008. “It’s unfortunate that other places didn’t preserve evidence too. We’re just in a unique position where I can look at a case, test DNA evidence from that period, and say without a doubt that a person is innocent.…But that doesn’t mean other places don’t have the same problems Dallas had.”
If the rest of the country has an actual (but undetected) wrongful conviction rate as high as Dallas County’s, the number of innocents in prison for felony crimes could be in the tens of thousands.
There’s lots more. So please read the rest of this very good—and sobering—story.
PS: In reading this story, I remembered that, just in my own circle of friends and acquaintances, I know two people who have had life sentences overturned after many years in prison. One is Frankie Carrillo, whom I have just met recently. The other is Mario Rocha, who like Carrillo, was convicted as a teenager, and served 12 and a half years for a murder he didn’t commit.
On the flip side of that coin, I know one person, Danny Cabral, who is serving a life sentence for a murder I am completely positive he didn’t commit.
I also know a second LA man, Hector Salgado–another lifer— who, as I delve more deeply into his case, I am coming to believe is too innocent.
Each of the men has been locked up for nearly 20 years. Both are hoping that one of the Innocence Projects will take their cases.
Both of them haunt me.
AND WHILE WE’RE ON THE SUBJECT OF SENTENCING, A DANISH PHARMACEUTICAL COMPANY IS “HORRIFIED” THAT ITS DRUG IS BEING USED FOR AMERICAN EXECUTIONS
This story is from the Wall Street Journal, which has tucked it behind a pay wall in the last few hours, but much of it is here at Doug Berman’s site.
Below is a clip.
Danish pharmaceutical company Lundbeck A/S said Wednesday it’s urgently seeking ways to stop prisons in the U.S. from using one of its epilepsy drugs being used for executions. The company’s Nembutal medicine, designed to treat epileptic seizures, is increasingly being used in prison executions in the U.S. even though it wasn’t meant for that purpose.
“We are horrified at this fact and are looking at ways to prevent prisons from getting this drug, including tougher conditions on distribution,” Lundbeck spokesman Mads Kronborg said Wednesday. The drug, acquired when the Danish company bought U.S.-based firm Ovation in 2009, is of no strategic importance to Lundbeck and represents less than 1% of the Danish drug maker’s overall sales.
“At first we considered stopping production of this product but there is a medical need for it and hospitals pleaded with us not to cut off the supply. It is the mother of all dilemmas for us,” Mr. Kronborg said.