As I have mentioned many times previously, I am preparing a monograph on the rate of wrongful conviction. Each chapter will deal with one estimate of that rate, beginning with zero and ending beyond 10%. I am posting the draft chapters here, as I write them. I have so far posted the following:
Chapter 0.027: The Scalia Number
Chapter 0.5: The Huff Number
Chapter 0.8: The Prosecutor Number
Chapter 1.0: The Rosenbaum Number
Chapter 1.3: The Police Number
Chapter 1.4: The Poveda NumberChapter 1.9: The Judge Number
Chapter 2.3: The Gross Number
Chapter 3.3: The Risinger Number
Chapter 5.4: The Defense Number
Chapter 9.5: The Inmate Number
In this chapter, I use a numerator and a denominator to go nose-to-nose with the likes of Marty Rosenbaum, Tony Poveda, Samuel Gross, and Michael Risinger. Wish me luck.
Chapter 10.1
A Skeptical Juror Number
I propose a system by which we can quantify our county’s wrongful conviction rate. I propose a series of publicly-funded panels of distinguished jurists that would carefully review a large sample of verdicts. Each panel would offer its assessment of whether specific defendants were factually guilty or factually innocent. These panels would be granted insight into the cases beyond that available to the juries. They would be able to take years, even decades, to reach their final judgements.
Each panel would allow both prosecution and defense to submit their cases in carefully crafted documents and, in some cases, to appear before the panel itself. Each panel would be required to review the cases so carefully and reach its final judgements with such confidence that it would be willing to publish its results for all to see. Each panel would be so confident in its decisions that it would allow other similar panels to review its work.
As a society, we could decide that, at least for the purpose of calculating our wrongful conviction rate, the judgment of the panel system would be final. Any person exonerated as a result of the panel review system would be declared factually innocent, at least for the purpose of making our wrongful conviction rate calculation. Any person who definitively stood no chance of ever being exonerated by the panel review system would be declared factually guilty, at least for the purpose of making our wrongful conviction rate calculation. As a society, we would then divide the number of factually innocent people by the number of cases definitively ruled upon by the panel system, and declare that to be the official wrongful conviction rate.
The math would be simple. If the panel system found 10 defendants to be factually innocent and 90 to be factually guilty, the wrongful conviction rate would be calculated as:
The rate would be applicable only to the types of cases well-represented in the large sample of cases reviewed by the panel system. If for example, the panel system reviewed a large number of drug-related trials, the number would be applicable to those people convicted as a result of a drug-related trial. If the panel system had reviewed a large number of cases where the defendant had pled guilty to arson charges, the result would be applicable to those people who pled guilty to arson.
I hereby claim we already have an approximation of a panel review system such as I just proposed. We call it our appellate court system. I claim further that the appellate court system approximates the panel review system only for death penalty cases, and only for those cases finally and irretrievably decided.
For the narrow purpose of calculating our country’s wrongful conviction rate (specifically for capital murder cases), a person is declared factually guilty when that person is executed. That case is then irretrievably decided. There may be those, such as myself, who argue it is statistically impossible that the population of those executed did not include a fair number of innocent people. For the narrow purpose of the calculation at hand, those people must stand mute.
Furthermore, for the narrow purpose of calculating our country’s wrongful conviction rate (specifically for capital murder cases), a person is declared factually innocent under one of three scenarios. The first scenario consists of the case being overturned by the appellate court system and the person being acquitted during retrial. The second scenario is similar; it consists of the case being overturned by the appellate court system followed by the prosecution deciding not to re-try it. The third scenario consists of an absolute pardon being granted by the governor after the discovery of new evidence. For those people exonerated as just described, their case has been irretrievably decided. They cannot be retried for the same crime.
There may be those, such as Joshua Marquis and Justice Scalia, who might argue that some of those removed from death row merely had their death sentences overturned, and that others were convicted of lesser crimes. I would counter that as long as those people breathed, they still had some hope of exoneration, minimal as that chance might be. Their case had not been irretrievably decided, and it should therefore be excluded from the calculation.
Only cases finally and irretrievably decided by a thorough and persistent panel review system should be included in this particular wrongful rate calculation.
For the narrow purpose of this calculation, those people who were executed despite years or decades of appellate reviews are deemed to be finally and irretrievably guilty. As of September 1, 2009, they number 1224.
For the narrow purpose of this calculation, those people who were exonerated after being placed on death row are deemed to be finally and irretrievably innocent. As of September 1, 2009, they number 138.
Based on these two numbers, I calculate our country’s wrongful conviction rate for capital murder cases to be:
As of September 1, 2009, we have 3,261 inmates on death row. Given a wrongful conviction rate of 10.1%, we have 329 innocent people wrongfully awaiting execution by this country.
The astute among you may see similarities in my calculation and those of Marty Rosenbaum (Chapter 1.0), Tony Poveda (Chapter 1.4), Samuel Gross (Chapter 2.3), and Michael Risinger (Chapter 3.3). Each of them did something similar. Each divided a number of murder exonerations by a number of murder convictions, yet they calculated a wrongful conviction rate somewhere between one-third and one-tenth the number I have so compelling calculated here. How can that be? Each of us used a reasonable numerator and each of us used a reasonable denominator, so how is that we arrived at such widely varying rates?
The answer lies in our denominators. We are pretty consistent in defining our numerators. Inmates must be pretty well exonerated before they are counted as such, though Samuel Gross is a bit lax in that regard for some critics. With respect to our denominators, however, we don’t see eye-to-eye.
The denominator in each case is some number of convictions. For my predecessors, convictions equate to the sum innocent people (presumed equal to those exonerated) and guilty people (presumed equal to those not exonerated.)
I equate convictions to the sum of those irretrievably exonerated (same as my predecessors) and those irretrievably guilty (those who were executed and beyond any hope of exoneration.) In other words, my predecessors assume that at some point short of execution inmates must be guilty if they haven’t been exonerated. I do not make that assumption. I use death penalty cases specifically because they provide a clear cut distinction between irretrievably innocent and irretrievably guilty. All other cases which exit the death penalty arena I declare to be still unresolved.
Because I am equally demanding in defining factual guilt as I am in defining factual innocence, I include fewer convictions in my denominator. And that has made all the difference.
Two roads diverged in a yellow woodEach panel would allow both prosecution and defense to submit their cases in carefully crafted documents and, in some cases, to appear before the panel itself. Each panel would be required to review the cases so carefully and reach its final judgements with such confidence that it would be willing to publish its results for all to see. Each panel would be so confident in its decisions that it would allow other similar panels to review its work.
As a society, we could decide that, at least for the purpose of calculating our wrongful conviction rate, the judgment of the panel system would be final. Any person exonerated as a result of the panel review system would be declared factually innocent, at least for the purpose of making our wrongful conviction rate calculation. Any person who definitively stood no chance of ever being exonerated by the panel review system would be declared factually guilty, at least for the purpose of making our wrongful conviction rate calculation. As a society, we would then divide the number of factually innocent people by the number of cases definitively ruled upon by the panel system, and declare that to be the official wrongful conviction rate.
The math would be simple. If the panel system found 10 defendants to be factually innocent and 90 to be factually guilty, the wrongful conviction rate would be calculated as:
Wrongful Conviction Rate = 10 / (90 + 10) = .10 = 10%
The rate would be applicable only to the types of cases well-represented in the large sample of cases reviewed by the panel system. If for example, the panel system reviewed a large number of drug-related trials, the number would be applicable to those people convicted as a result of a drug-related trial. If the panel system had reviewed a large number of cases where the defendant had pled guilty to arson charges, the result would be applicable to those people who pled guilty to arson.
<<>>
I hereby claim we already have an approximation of a panel review system such as I just proposed. We call it our appellate court system. I claim further that the appellate court system approximates the panel review system only for death penalty cases, and only for those cases finally and irretrievably decided.
For the narrow purpose of calculating our country’s wrongful conviction rate (specifically for capital murder cases), a person is declared factually guilty when that person is executed. That case is then irretrievably decided. There may be those, such as myself, who argue it is statistically impossible that the population of those executed did not include a fair number of innocent people. For the narrow purpose of the calculation at hand, those people must stand mute.
Furthermore, for the narrow purpose of calculating our country’s wrongful conviction rate (specifically for capital murder cases), a person is declared factually innocent under one of three scenarios. The first scenario consists of the case being overturned by the appellate court system and the person being acquitted during retrial. The second scenario is similar; it consists of the case being overturned by the appellate court system followed by the prosecution deciding not to re-try it. The third scenario consists of an absolute pardon being granted by the governor after the discovery of new evidence. For those people exonerated as just described, their case has been irretrievably decided. They cannot be retried for the same crime.
There may be those, such as Joshua Marquis and Justice Scalia, who might argue that some of those removed from death row merely had their death sentences overturned, and that others were convicted of lesser crimes. I would counter that as long as those people breathed, they still had some hope of exoneration, minimal as that chance might be. Their case had not been irretrievably decided, and it should therefore be excluded from the calculation.
Only cases finally and irretrievably decided by a thorough and persistent panel review system should be included in this particular wrongful rate calculation.
For the narrow purpose of this calculation, those people who were executed despite years or decades of appellate reviews are deemed to be finally and irretrievably guilty. As of September 1, 2009, they number 1224.
For the narrow purpose of this calculation, those people who were exonerated after being placed on death row are deemed to be finally and irretrievably innocent. As of September 1, 2009, they number 138.
Based on these two numbers, I calculate our country’s wrongful conviction rate for capital murder cases to be:
138 / (1224 + 138) = .101 = 10.1%
As of September 1, 2009, we have 3,261 inmates on death row. Given a wrongful conviction rate of 10.1%, we have 329 innocent people wrongfully awaiting execution by this country.
<<>>
The astute among you may see similarities in my calculation and those of Marty Rosenbaum (Chapter 1.0), Tony Poveda (Chapter 1.4), Samuel Gross (Chapter 2.3), and Michael Risinger (Chapter 3.3). Each of them did something similar. Each divided a number of murder exonerations by a number of murder convictions, yet they calculated a wrongful conviction rate somewhere between one-third and one-tenth the number I have so compelling calculated here. How can that be? Each of us used a reasonable numerator and each of us used a reasonable denominator, so how is that we arrived at such widely varying rates?
The answer lies in our denominators. We are pretty consistent in defining our numerators. Inmates must be pretty well exonerated before they are counted as such, though Samuel Gross is a bit lax in that regard for some critics. With respect to our denominators, however, we don’t see eye-to-eye.
The denominator in each case is some number of convictions. For my predecessors, convictions equate to the sum innocent people (presumed equal to those exonerated) and guilty people (presumed equal to those not exonerated.)
I equate convictions to the sum of those irretrievably exonerated (same as my predecessors) and those irretrievably guilty (those who were executed and beyond any hope of exoneration.) In other words, my predecessors assume that at some point short of execution inmates must be guilty if they haven’t been exonerated. I do not make that assumption. I use death penalty cases specifically because they provide a clear cut distinction between irretrievably innocent and irretrievably guilty. All other cases which exit the death penalty arena I declare to be still unresolved.
Because I am equally demanding in defining factual guilt as I am in defining factual innocence, I include fewer convictions in my denominator. And that has made all the difference.
<<>>
and sorry I could not travel both
And be one traveller, long I stood
and looked down one as far as I could
to where it bent in the undergrowth;
Then took the other, as just as fair,
and having perhaps the better claim
because it was grassy and wanted wear;
though as for that, the passing there
had worn them really about the same,
And both that morning equally lay
in leaves no feet had trodden black.
Oh, I kept the first for another day!
Yet knowing how way leads on to way,
I doubted if I should ever come back.
I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I --
I took the one less travelled by,
and that has made all the difference.
Notes:
1. My calculations include only those cases decided since the re-institution of the death penalty in 1976.
2. For the number of executions since 1976, see The Death Penalty Information Center at http://www.deathpenaltyinfo.org/executions
3. For the number of exonerations from death row since 1976, see The Death Penalty Information Center at http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row
4. For the number of those on death row, see The Death Penalty Information Center at http://www.deathpenaltyinfo.org/death-row-inmates-state-and-size-death-row-year#state
5. Poem by Robert Frost: “The Road Not Taken”
No comments:
Post a Comment