What if you're innocent?

Photographer: Justin Sullivan/Getty Images

Wrongful Convictions and Bad Jails Are Ugly Mix

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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If you haven't already done so, I urge you to read Alex Kozinski's blistering indictment of the justice system. Carefully and at great length, he lays out the assumptions that lead us to place more faith in jury verdicts than they deserve. 

  1. Eyewitnesses are highly reliable
  2. Fingerprint evidence is foolproof
  3. Other types of forensic evidence are scientifically proven and therefore infallible
  4. DNA evidence is infallible
  5. Human memories are reliable
  6. Confessions are infallible because innocent people never confess
  7. Juries follow instructions
  8. Prosecutors play fair
  9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt
  10. Police are objective in their investigations

All of these assumptions are false. Human memory is terrible, and that makes eyewitnesses unreliable, especially in cases involving strangers, sudden and unexpected events, and cross-racial identification. Identifying fingerprints from a sample taken by the police is easy, but identifying them from the smudged partial prints that investigators are more likely to get is often as much art as science. Many forensic specialties have dubious scientific underpinnings. Prosecutors and police investigators have been known to commit gross abuses of their power that have imprisoned innocent people, and while the vast majority of police and prosecutors probably aren't deliberately subverting the system, they are prey to ordinary biases that can result in terrible miscarriages of justice when they settle on the wrong person. However, because juries do assume these things, the defendant walks in with a stain of guilt on them, no matter what jurors say during voir dire. And since no one has any good systematic evidence of how juries deliberate, we don't have much reason to think that they follow instructions from the judge. We do have reason to think that, just like other groups of people, they are susceptible to being influenced by a single member with a very strong opinion.

DNA evidence gave us insight into this problem: When it came along, it led to the overturning of a number of convictions, and thereby exposed all the ways in which the American justice system could go wrong. And yet instead of making us worried about the justice system, that made us more confident. Look, we have DNA -- now we're infallible! 

That was exactly the wrong conclusion. DNA evidence is available only in a fraction of cases. And yet, there's no reason to think that the cases in which it was available were somehow more shoddily investigated or prosecuted than the ones in which it wasn't. What the DNA revolution showed us is that the American justice system regularly goes wrong, because fallible humans who think they know more than they actually do make terrible mistakes.

Kozinski goes on to suggest some reforms that could alleviate at least some of these problems. But beyond his very sensible suggestions, I think that this calls for a broad reassessment of our willingness to incarcerate millions of people in conditions that wouldn't do for a dog, at least if you liked the dog.

I have spent very little time on the criminal justice system, but you don't have to spend much time there to be sickened by what we put prisoners through. I once spent a few minutes shut in a court holding cell in a nice liberal state. (Voluntarily, I hasten to add; the deputies offered to shut me in there so I could see what it was like, and I agreed.) It was the most horrible place I have ever been, and there weren't even any other people in the room.  Had most of the people who passed through that room done something illegal? Quite probably. Had many of them contributed to the squalor of the place, the graffiti on the wall and the need to dole out toilet paper one square at a time so that no one would pass the time by flooding the cell's sanitary facilities? Undoubtedly. Nonetheless, it was hard for me to believe that those conditions constituted an appropriate part of their punishment.

We reconcile ourselves to these things by resolutely failing to learn about them -- or when we do, by consoling ourselves that the people in them have done something terrible. In the case of prison rape, we even joke about it, which is barbaric, indecent. Rape is not an appropriate punishment for securities fraud violations. It is not an appropriate punishment for any crime. It is a crime, and we should not take glee in its happening to anyone, even if that someone did something wrong.

Of course, not everyone may agree with me that prison should be a boring and unpleasant but not actively horrible place; some people might argue that people who have flagrantly broken the social contract are not entitled to have the rest of us spend a lot of time worrying about the hellish conditions in which they're incarcerated. But those people should certainly be given pause by the thought that the justice system is set up to make a significant number of mistakes, in the direction of incarcerating the undeserving. What if some substantial number of those people didn't do anything wrong -- if the justice system in which we have placed so much confidence is not so biased toward the defendant as we would like to believe? How many innocent people are we willing to put in these squalid cages?

I'm not suggesting that the majority of people in the justice system are innocent, or there for things that are not "real" crimes, such as drug possession. Most people in prison were convicted of very real, very serious crimes, and you can believe Kozinski's critique without believing that most of them are innocent. But what if 1 percent of them didn't deserve to be there? What if the number was 5 percent, or 10 percent? The horrors of the American system of incarceration become a great deal more horrifying if you start to think of being sent there for a crime you didn't commit. The number of wrongful convictions doesn't have to be all that high for the brutality of American prisons to be intolerable.

And I suspect that this, in turn, makes it hard for us to contemplate the possibility that the American justice system isn't quite as just as we generally assume. We might be willing to accept a high accidental conviction rate, if prison weren't so miserable, just as we'd be more willing to accept the misery of prison if the system made it harder than it actually is to secure a wrongful conviction. But because both of these things are true, we need to forget both of them, lest our consciences give us the same kind of torment that our justice system inflicts on its prisoners.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author on this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor on this story:
James Gibney at jgibney5@bloomberg.net