Uprooting the Creeping Belief That the Criminal Justice System is Infallible

by TChris

Yesterday, Last Night in Little Rock took issue with Justice Scalia's assertion in Hudson v. Michigan that the exclusionary rule isn't needed to deter police misconduct because "modern police forces are staffed with professionals." Complementing LNiLR's comment on the unprofessional and inexperienced members of the Las Vegas Police Department is David Feige's Boston Globe reminder that the New York Police Department spent nearly 12 years trying to locate evidence that led to the exoneration of Alan Newton. A professional police department might have considering looking in the evidence locker assigned to that case, where it was finally found. If this is "professional" conduct, what does an incompetent police department look like?

Like LNiLR, Feige is baffled by Scalia's vision of unerring law enforcement. Feige calls the Newton exoneration "a poignant rebuke" to Scalia's opinion in a different case, Kansas v. Marsh.

In that death penalty decision, Scalia went far out of his way to attack what he termed the death penalty "abolition lobby." In his analysis, Scalia joined a growing chorus of death penalty proponents who claim that our criminal justice system is nearly perfect in adjudicating guilt and innocence. Indeed, Scalia devoted entire pages of his opinion to excoriating several of his fellow justices for succumbing to what he believes are unfounded fears of fallibility created by the extensive attention garnered by the exonerated.

Justice Scalia seems a fan of Joshua Marquis, "the district attorney of Clatsop County, Ore., and an oft-quoted spokesperson for the prosecutorial lobby," who "asserts that the conviction of the innocent is essentially unheard of in our system of criminal justice." Marquis apparently didn't consult the Innocence Cases archive on TalkLeft, where he would have learned that the criminal justice system screws up -- producing unreliable guilty verdicts and convictions of the innocent -- on a regular basis.

Feige's article provides deadly ammunition against opponents of criminal justice reform who base their arguments on Marquis. It also stands as a warning that Marquis' reasoning is creeping into the conventional wisdom of policy-makers.

As Alan Newton's wasted years clearly demonstrate, imprisoning citizens for crimes they didn't commit is a tragic injustice whether it is freakishly improbable or terrifyingly commonplace. But as long as the opponents of change refuse to acknowledge the scope of the problem, much needed reforms will remain-like the exonerating evidence in Mr. Newton's case-unexamined. The tragedy here isn't merely questionable scholarship, it's the degree to which the prosecutorial lobby has latched on to what appears to be advocacy masquerading as statistical argument. That Justice Scalia has adopted this reasoning wholesale, seemingly without critical analysis, is merely further proof that when it comes to criminal justice reform, it is hardly the zealousness of the abolitionist movement we have to fear.

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    Re: Uprooting the Creeping Belief That the Crimina (none / 0) (#1)
    by roxtar on Sun Jul 16, 2006 at 03:08:13 PM EST
    If the "conviction of the innocent is essentially unheard of in our system of criminal justice", we do not have the cops or the proecutors to thank for that fact. I note with interest that Mr. Marquis speaks of the "conviction of the innocent"; he makes no such claim with regard to the prosecution of the innocent.

    Re: Uprooting the Creeping Belief That the Crimina (none / 0) (#2)
    by JSN on Sun Jul 16, 2006 at 08:35:21 PM EST
    In my city all arrests are reviewed by the police dept. administration if there is a complaint. We also have a citizen review board (with very limited powers) that also responds to complaints. Charges can be dismissed by the magistrate at initial appearance or by the county attorney and after the defense attorney gets a copy of the arrest report they can ask that the charge be dismissed. My studies of jail records indicates that at least 4% of the charges are dismissed for persons arrested and jailed. If the criminal justice system is so perfect why do we have all of this review at the front end as well as judical review at the appeals court level and above? Scalia is full of it.

    I didn't know whether to laugh or cry when I read Scalia's opinion. The innocent are convicted with shocking frequency. I'd like for Scalia to do about 3 weeks of appeals work and then tell me with a straight face how incredibly unusual it is for an innocent man to go to prison.

    Over 2,000,000 people are currently incarcerated in this country (this does not include people on post-conviction supervision). That means, even if we assume a hugely impressive "wrongful conviction rate" of a mere 0.5%, over 10,000 would currently be wrongfully incarcerated.

    Re: Uprooting the Creeping Belief That the Crimina (none / 0) (#5)
    by jazzcattg1 on Mon Jul 17, 2006 at 06:05:49 AM EST
    IIRC the Dems went full bore after Rehnquist as CJ and let Scalia slide thru with an unanimous favorable vote in confirmation hearings- hence we get shrub via bush v. Gore and still stuck with Scalia and the ensuring arrogance for many years to come.

    This thread is fizzling, but it's actually a lot more important than many of the "issues" here. The issue is too often over-simplified. For one thing, "wrongful convictions" are not limited to cases of misidentification of the "wrongdoer." That's obviously, the least debatable type of error, but you can have the right "doer" and still wrongfully convict him if what he did is misrpresented and if the law is misapplied to an accurate misrepresentation of what he did. We also have the problem that meanigful statistics are difficult to come by. Taking persons established to have been misidentified as the wrongdoer and convicted as numerator and all convictions as the denominator provides a wildly inaccurate number. First, we have the obvious logical flaw that basing the numerator only on those ESTABLISHED to have been misidentified simply HIDES the true number by ignoring the near certainty that he ones established to have been misidentified represent only some fraction of those who have been misidentified. Second, we have the problem that most studies use statistics based on aggregate numbers of felony charged. this distorts things because each felony charged does not represent a discrete individual because may people are charged with multiple felonies. One person charged with 6 felonies is still one person and the "wrongful conviction rate" to be meaningful must be based on people not charges. To illustrate, if we have one person charged with 6 felonies and he is wrongfully convicted of only one , just looking at him would provide a wrongful convictionrate of only 16.6% in terms of felonies charged, when obviously on a "person" scale the rate is 100%. That's why the article linked is similarly flawed. It assumes that in plea bargain cases there are no wrongful convictions and those should be removed from the calculations. It made that asserton to attack the ridiculous 0.0027 rate offered by ther prosecutor but it too is flawed. Wrongful convictins can and do result from plea bargains. People with poor or overburdened lawyers faced with 6 charges might well be innocent of all of them but choose to plead to one because the risk of going to trial is very high and a deal to single conviction and a lesser punishment a rational choice. Who knows how many people might ple to a charge and accept a penalty of probation or time served just to get it over with and eliminate the risk of a long prison sentnece. Intuitively, one can surmise this phenomonenon is more prevalent among poor people who are both more likely to have inadequate representation and more likely to be sitting in jail awaiting resolution than wealthier people. Factor in also, the number of people whose wrongful convictions result from issues other than misidentification and the bottom line is no one really knows the extent of wrongful convictions. I do believe the rate is one low that SOUNDS low in the abstract. I also accept the reality that perfection is impossible in human systems because even perfect could not prevent errors from imperfect operation. Errors will occur. That is inevitable. sometime the errors may be "mistakes" and sometimes there may be malevolence involved but there will always be errors. Fundamentally, we must remember that even though unattainable, perfection should be a goal and it is simply unacceptable to argue that "we have so few errors that they don't matter and the best policy is to simply accept them and not waste resources preventing or if necessary correcting them." Even 99.5% is not good enough-- especially if you are one of the 0.5%.

    Decon, I agree. I would add that more attention needs to be paid to witness ID errors (I'm in a hurry so apologies if you already said that). As for pleading to "get it over with," it happens all the time. Especially in child molestation cases. It's a life ruining charge whether you're innocent or guilty, and it's often tried with little to no evidence. A colleague estimates that 1/3 of child molestation charges are false...I think he's right.