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Innocents Lost

Being a criminal defense attorney is not the easiest job I could have chosen. In many ways, it’s the hardest. I am, unfortunately, an idealist of the worst sort. I believe in The Law. I do not believe The Law should be broken.

Why, then, do I “defend criminals”?

First off — this is that ugly idealism again raising its head — I don’t buy into the idea that I defend criminals. Wh-? Huh?

“But you’re a criminal defense attorney!,” you shout. (You do know I can’t actually hear you, by the way, don’t you?)

At any rate, yes, I’m a “criminal defense attorney.” I didn’t pick the moniker. It’s what we who defend people who have been accused of committing crimes are called. So I don’t defend criminals; I defend people accused of committing crimes.

“Words. Words. Mere words,” you say. I really can’t hear you. I hope you know that. I’m just assuming, based on conversations with actual people, that this is what you’re saying.

Increasingly, though, these are not “mere words.” If they ever were. Mere words would be things like “innocent unless proven guilty,” or “the burden of proof is on the prosecution.” Reality is that, increasingly, innocent people actually do get arrested, charged with crimes, sometimes have trials, and too often go to jail. Or prison. Or worse.

Estimates of the number of innocent people in prison vary. Justice Scalia — against all reason — estimates it to be “less than three-hundredths of a percent — 0.027 percent, to be exact.”

Me — but, remember, I’m an idealist — I think even 0.027 percent is an outrageous shame. I’m not the world’s greatest mathematician (that’s onereason I became a lawyer), but with 7.3 million citizens in the U.S. prisons system in 2007,[1] I estimate that’s getting close to a couple-thousand innocent people whose lives have been stolen. (For you, “Justice” Scalia, that’s 1,971.)

You want to be one of those people and tell me that’s not bad; mistakes happen; you can’t make an omelet without breaking a few eggs?

Besides, I think that number is clearly wrong. The number assumes that Scalia and the people upon whom he relied are correct about the percentage of innocents in prison.

The authors of Convicted But Innocent: Wrongful Conviction and Public Policy (1996) think a conservative estimate is closer to 0.5%, which based on calculations using 1990’s numbers yields around 10,000 innocent people wrongfully convicted. And they believe the number is actually quite a bit higher. And in 1990, there were half as many people in prison as there are today, so the actual number using their calculations today would be 20,000 innocents in America’s prisons.

The estimate discussed in Convicted But Innocent is based on asking judges and prosecutors what they think the number is. Not exactly the most scientific method for making such determinations. After all, judges and prosecutors tend to be biased in favor of believing that those convictedaccused of a crime were guilty. The authors themselves say that if more public defenders were asked, the number would be higher.


Samuel Gross, a University of Michigan law professor, has calculated that 2.3 percent of all prisoners sentenced to death between 1973 and 1989 have been exonerated and freed. His research suggests that the vast majority in fact did not commit the crimes and an unknown number of innocents have not yet been exonerated.[2]

Another study, based on death row inmates, shows that since 1977 five-hundred-and-fifty-three have been executed, while eighty were released from death row after being found innocent.

For every seven executed, one innocent person is freed — an “error rate” of more than twelve (12) percent. In the State of Illinois, 12 people have been executed since 1977 while 13 have been released after proving their innocence — an error rate of 52 percent.[3]

The Truth & Justice Foundation notes that estimates for wrongful convictions range all the way from a low of 3 to a high of 15%.

Whatever the number, it’s growing.

The length of sentences is growing, too. In 2004,

One out of every 11 persons in the federal and state prison systems in the US [was] serving a life sentence, four times the number of “lifers” in 1984.[4]

Watson’s article is an eye-opening read. Among other things, it notes that 60 percent of California’s “three strikes” cases involve non-violent offenses — property offenses, such as the theft of $153 of videotapes — resulting in sentences of 25 years to life. Then there are the victims of domestic abuse, those who finally snap and kill the men who repeatedly beat them: they get beaten a lot less now that as many as 2,000 of them are serving life sentences.

Let’s not even consider that our “tough on crime” stance has us shutting down mental health facilities, then incarcerating most mentally-ill individuals such that — again going off Watson’s 2004 numbers — one in every five lifers and one in every six “general population” prisoners are mentally ill.

Meanwhile, the conservative Cato Institute reports:

The amount of money that American taxpayers spend on prisons has never been greater, and the fraction of the American population held in prison has tripled during the last 15 years, as has national prison capacity. Yet the expected punishment of violent criminals has declined, and violent crime flourishes at intolerably high levels. The seeming paradox of more prisons and less punishment for violent criminals, which means less public safety, is explained by the war on drugs. That war has gravely undermined the ability of America’s penal institutions to protect the public. As prisons are filled beyond capacity with nonviolent “drug criminals” (many of them first offenders), violent repeat offenders are pushed out the prison doors early, or never imprisoned in the first place.[5]

Alright. Alright. Let me stop beating the dead horse. We have large numbers of innocent people in our prisons. I blame our society’s increasing tendency to favor “victim’s rights” over the necessary goal of our justice system — the determination of whether an accused person is guilty, or not guilty. But I’ll set that observation aside for another day.

We have innocent people in prison. What shall we do if and when we find them?

Well, it depends.

According to the 9th Circuit Court of Appeals, if we find them in time — that is, before the artificial boundary created by Congress in 1996, which undid a couple hundred years (at least) of precedent — maybe they can go free.

But if they missed the boundary? If — although they are actually innocent of the crime for which they were convicted — they are unable to prove their innocence until after the time limit for an appeal or writ has passed?

Well, fuck ’em. Let ’em rot in prison.

At least, that’s what the 9th Circuit Court of Appeal — allegedly the most liberal of circuits in the United States — has to say.

And that, my friend, is nothing short of criminal.

  1. The prisons system includes people in prison, jail, probation and parole.
  2. Sheldon Archer, “There are Thousands of Innocent People in American Prisons” (29 June 2010) ArticleBlast, available at
  3. Roger Roots, “How Often Does The Criminal Justice System Get It Wrong?” (February 5, 2001) available at
  4. Debra Watson, “Huge rise in prisoners serving life sentence in the US” (26 May 2004) International Committee of the Fourth International.
  5. David B. Kopel, “Prison Blues: How America’s Foolish Sentencing Policies Endanger Public Safety” (May 17, 1994) Cato Institute.