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Half of All False Convictions in US Involved Police or Prosecutor Misconduct (reason.com)
109 points by pseudolus 4 days ago | hide | past | favorite | 23 comments

The original report only analyzes successful exonerations. There are many times more cases out there of false convictions, victims who have not seen the light of day. Those without exculpatory evidence have basically no hope. Some of them have actual exculpatory evidence, but their appeals do not succeed.

Exculpatory evidence (evidence that proves innocence) brought up after a criminal trial was concluded often does not lead to exoneration. The burden of proof that is required to sustain the validity of said evidence is high, in order to disincentivize hiding evidence until after a trial is over in order to overturn the result. Exculpatory evidence is often thrown out on procedural grounds, even when the evidence itself is valid. Moreover, the criminal justice system as it operates today has little to no incentive to reopen cases, for a multitude of reasons.

Most successful exonerations require immense amounts of legal leg work on the part of lawyers, witnesses, and LEOs. Evidence loses value as time goes on. Most falsely convicted criminals have no resources to pursue their innocence. Even cases that seem like simple slam ducks, where a DNA test is all that is logically necessary to overturn the original conviction, take years or decades to complete.

"It is better that ten guilty persons escape than that one innocent suffer." - William Blackstone

I wonder how many of the exonerations are 'not guilty' rather than 'innocent'.

That is, they were convicted wrongly, but still did the crime. I don't suppose we could ever find that out.

This is just an anecdote, but when I was called up as first-time juror, I was surprised how much the police and the prosecuting attorney were pushing for something that just wasn't there.

Incentives are everything, and these groups of people get paid to put people in jail. And it shows.

I had a similar experience on a grand jury in new york (where you decide whether or not a felony case should go to trial at all) and was shocked to see a prosecutor come back 4 times on the same case, each time with a slightly less serious charge (ie, starting with level 1 felony assault and ending with some lesser assualt charge). So even after we the grand jury decided there was not enough evidence for the felony assault case to go to trial, they attempt it over and over again, with the same evidence, though requesting a slightly lesser charge, desperate for a different result.

This sounds like debugging with printfs.

I work closely with a government agency. It's nearly impossible to sue (expensive, no punitive recovery) and yet still it's impossible to get them to admit any possibility of mistakes. They'll double down on the BS and circle wagons to protect individual actors and move folks around to ensure they still get pension. And this isn't even some front of line law enforcement stuff, it's boring small department stuff. Legislators and Governor are too busy to give any attention. (Even after I spending many thousands on campaigns and lobbying)

One overlooked area are the incentives for fixing it: the state requires legitimacy and respect. They need it to feel odd that they could do any wrong. They need it to be an absurd debate that they could be wrong, that they can arbitrarily ruin your life, and that there is no real or likely capability of appeal or review that results in your freedom.

This misaligned incentives need to be addressed as well.

Judges, district attorneys, mayors, governors, and prosecutors all hem and haw at the idea of revisiting a case.

It isn't possible for there to be enough podcasts and documentaries that gain the public interest in a case.

This and many other things lead me to believe the U.S. is much less free than people would like to admit it to be. It’s just a different flavor of such unfreedom.

> lead me to believe

well, that's a start. it has the largest amount of people in prison in both per capita and in absolute numbers.

many of those people are taking plea deals simply because they cannot afford their rights.

the primary difference between the US and other systems is that we are apologists for the US system and simply don't respect other systems and thats the only distinction.

people are conditioned to retort by comparing the US with the worst countries in the world, to rationalize why we're the best in a race nobody is even in. this is a mental disease.

they're conditioned to dismiss flaws by saying "but at least we can talk about it", deflecting further discussion about the state of the system to a comfortable imagined assurance of consequence free speech, ignoring the exceptions to that part of the Bill of Rights and the other 9 amendments in it, amongst every other article and procedural gaff

I'm confused by the example at the end:

> On Monday, after 37 years in prison, Robert DuBoise was formally exonerated in Florida for a rape and murder from 1983 that DNA evidence now proves he did not commit. He was convicted partly due to testimony from unreliable jailhouse informants and controversial, discredited bite mark analysis. His case is a perfect example of how much our justice system is plagued by bad behavior.

But reading the story they link to for more detail, I didn't see any obvious description of misconduct or bad behavior.

Yes, bite mark analysis is considered mostly bogus now, but that is a fairly recent development. In 1983 it was widely accepted.

And yes, jailhouse informants can be unreliable. They can also be reliable. Just like any other kind of informant. Or any other person who testifies. That's why the defense gets to cross examine them, and it is left up to the jury to decide if a given one is reliable or unreliable.

BTW, don't infer from the apparent weakness of the article's example that the underlying report the article is based on, from the National Registry of Exonerations, is weak. The example from the article is not from the report.

The report does contain a few examples, so I find it odd that the article did not use one of them.

Part of the motivation for the bad behavior, and the subsequent lack of reprimand, is pressure for results in a system with case overload. The pressure to close cases quickly drives an improper need for convenience and expediency in violation of ethical norms. The unpopular solution is to increase available manpower to drive more thoroughly examined results and peer oversight.

And that overload is after most cases have been bullied into plea bargains.

I'd say the better solution is to reduce the number of crimes there are - perhaps legalize drugs. If there is a victim, it's not a crime.

The idea of elimination of victimless crimes is problematic. That doesn’t account for second and third order consequences such as trafficking in persons or stolen goods. It also eliminates most traffic crimes which is very bad for personal safety.

Ultimately, yes, the number of criminals would decrease dramatically if people are no longer prosecuted for crimes but does not mean crimes would decrease.

Actually, other countries show that recidivism decreases when you lock less people up. E.g. the Netherlands where I come from used to have a shortage of jail cells. These days it has a surplus and not because we built more jails. It's a direct result of a few decades of policy aimed at reducing the cost of locking people up by punishing smartly, more selectively, and investing in prevention. This hasn't resulted in a wave of crime. Though if you read the popular press you might conclude otherwise.

The US has a crime policy problem. It locks up more people than any country in the world (including some very nasty regimes) and it's not making it a safer place. People enter the system when they are teenagers and from there it's basically a life of crime that is hard to escape.

It's actually a very cynical system if you look at the financials, lobbying, and politics around this. Some jail operators are private companies valued at billions of dollars on Wall Street. Lots of manufacturers rely on inmates producing stuff for them for next to nothing. It's essentially a modern form of slavery. There is a lot of lobbying around increasing spending on locking people up while still rolling off a lot of the cost on tax payers. The same lobbies are also putting pressure on the legal system to be "more efficient" which boils down to eroding people's rights to due process and fair treatment. A lot of the positions in the legal system are actually political positions so you get a lot of successful politicians that bootstrap their careers basically being lobbied to be tough on crime as a prosecutor, judge, etc.

It's also a racial problem in some states that have a majority black and latino population. Excluding people with criminal records from being able to vote is basically perpetuating an apartheid system where the demographics of the state are not reflected in its elected bodies. When those same states have predominantly right leaning "tough on crime" type politicians, it's easy to see the incentives politicians have looking the other way rather than addressing the core problems.

> That doesn’t account for second and third order consequences such as trafficking in persons or stolen goods.

Maybe I’m misunderstanding what you mean, but wouldn’t the trafficked person and person stolen from be the victims in those scenarios?

I don’t believe “victimless crime” typically refers to things like trafficking and theft — I’ve heard it more commonly used to refer to so-called “social ills” like petty drug dealing, public intoxication, and graffiti.

Trafficking in illicit goods and persons are more acts of criminal facilitation, than end goals, fueled by criminal enterprises, such as prostitution and resell of illicit goods that appear victimless.

Petty crimes and public intoxication contribute to the broken windows social theory.

I think they are referring to prostitution (another “victimless crime”), and how it often leads to human trafficking

*more than half

Seems obvious. What are the other options? Elaborate frame jobs? Unlikely. Biased jurors and judges? Sometimes.

One would hope that honest mistakes would be responsible for the vast majority.

You could have 10 times as many people in prison due to honest mistakes - if they were still in prison their numbers would not be included in the survey. My hypothesis is that its very hard to get a verdict reviewed by a court unless you have evidence of police or prosecutor misconduct.

There's a saying that goes 'wish in one hand, shit in the other. see which fills up faster.' With all of the information that has been coming out to everyone, there's no reason to believe honest mistakes are even close to being in the same ballpark. The systemic level of rot has become apparent, and makes it very very difficult to give any part of the system any sort of benefit of the doubt.

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