Lots of innocents populate the prisons of America

The Argument

The conventional wisdom that there are a tiny few miscarriages of justice is rebutted by serious studies.

April 09, 2000|By Steve Weinberg | Steve Weinberg,Special to the Sun

The conventional wisdom is that innocent men and women are hardly ever sent to prison in the United States. A subset of that legend is that in the rare cases when the criminal justice system miscarries, that system is self-correcting, freeing the wrongfully convicted expeditiously.

For many, many decades, books about wrongful convictions have both created and reinforced the legend. Almost every book told the story of an isolated case. Almost all ended with the wrongfully convicted individual back in society.

The conventional wisdom is dead wrong, as a couple of prescient but mostly ignored books have demonstrated -- one in 1932, one in 1992. The truth is that thousands of innocent men and women are charged with crimes every year, many are imprisoned for long stretches, and it is a near certainty that quite a few have been executed.

In the past couple of years, the head-in-the-sand assumption has finally begun to crumble. In Illinois, a law-and-order governor has suspended the death penalty after coming to grips with the reality that as many men on death row have been exonerated as have been executed in recent years.

In other states, reforms are occurring that make wrongful convictions less likely. The acceptance of DNA technology in the courtroom is bound to be a powerful safeguard against wrongful convictions in cases that yield genetic material susceptible to testing.

Two new books, one published last year and one published in February, are almost certain to play important roles in putting the dangerously mistaken perception to rest for a long time.

Before those two new books are praised, it seems only proper to pay homage to the two earlier books that should have made a huge difference, but failed to do so.

In 1932, Yale University law professor Edwin M. Borchard wrote a book called "Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice." Borchard was a specialist in international diplomatic law who collected cases of wrongful convictions in the United States as an avocation. Conservative by nature, he was loath to recommend wholesale changes in the criminal justice system. But recommend changes he did, based on the overwhelming evidence that the system was sending innocent men to prison month after month, year after year.

Borchard's book received positive reviews for breaking new earth. But nothing changed in the criminal justice system as a result. Those inside the system continued to wear their blinders. The general citizenry continued to believe that anybody charged with a crime must be guilty of something. What sensible person would believe a convict crying "I didn't do it!" from behind the bars of his cell?

Sixty years after Borchard, Michael Radelet, a University of Florida sociologist, and Hugo Adam Bedau, a Tufts University philosopher (with help from Bedau's writer wife Constance Putnam), followed in Borchard's footsteps, which had been obscured by the sands of time.

Their book, "In Spite of Innocence: Erroneous Convictions in Capital Cases," upped Borchard's ante of 65 examples by chronicling 400. A few specialists tried to bring the book to widespread public attention. Unfortunately, it was published by a university press, whose books tend to receive little attention in the best of circumstances -- and, more unfortunately, by an especially low-profile press, at Northeastern University.

So the marvelous Radelet-Bedau-Putnam book hardly made a blip on the mental radar of those inside the criminal justice system or those on the outside who possessed some power to reform it.

But the book emboldened a few journalists to pay increased attention to the workings of the criminal justice system. Soon newspapers, magazines, television stations and radio networks were beginning to listen more closely to convicts, their family members and friends who were crying out that something was amiss. Instead of dismissing every such plea with the cynical "All prisoners say they are innocent," some journalists did some independent investigating. As more and more news items about individual cases appeared, a critical mass seemed to be forming.

Two Chicago-area journalists, David Protess and Rob Warden, became the role models of journalists interested in taking on the criminal justice system. Protess, a Northwestern University journalism professor, and Warden, editor of a magazine aimed mostly at lawyers, combined to write two popular books about individual wrongful convictions.

The first, "Gone in the Night: The Dowaliby Family's Encounter With Murder and the Law" (Delacorte, 434 pages, $21.95), appeared in 1993.

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