Estimating the magnitude of wrongful convictions
Leading scholars estimate wrongful convictions from under 1% to as high as 38% of all convictions. If you’re unfortunate enough to be wrongly convicted, you know even one is one too many.
No one knows the exact number of wrongly convicted in the United States, or elsewhere. Nor is there wide agreement on how to estimate the population who are wrongly convicted.
Do we narrow it to those who are actually innocent, who had no involvement in the situation whatsoever? Or shall we include those who were admittedly present but played no role in the crime, yet perhaps had some moral culpability?
Do we narrow it to such actually innocent who also had no prior criminal history? Or does any previous record cast doubt on their claim of actual innocence?
What about the 95% of cases settled by plea bargaining? Their lack of transparency complicates matters.
Can we generalize the rates of cases already exonerated (by DNA or otherwise) with similar cases? Or does that open a Pandora box of wrongful conviction claims?
At least no serious legal or other scholar asserts the criminal justice never convicts an innocent person. Scholars offer the following estimated rates of wrongful convictions—in order from smallest to largest percentage—based on methodologies to reach their “guesstimation” of this painful problem.
3. .5%-1% (oft-cited “conservative” estimate)
This Gross & O'Brien estimate critiqued downward in:
5. 3.3 - 5%
Gross, S. R., & O’Brien, B., Hu, C., Kennedy, E. H. (2014). Rate of false conviction of criminal defendants who are sentenced to death. Proceedings of the National Academy of Science, 111:2, 7230-7235.
Using four of these estimates, the following chart tries to get a sense of the magnitude when multiplied to each affected population. Admittedly, each estimate may not be easily generalized to each population level. Nonetheless, you get some idea of how immense this problem can actually be—and likely is.
Behind these numbers are a staggering number of people shamed into silence. I am one of them. After coming out as transgender with my trans sibling in 1993—during the height of the sex abuse hysteria—we were falsely accused of the popular LGBT stereotype of child-recruiting predators.
Unlike most jurisdictions now, no corroborating evidence was necessary to convict. Ironically, we were implicitly accused during trial of hiding physical evidence that didn’t exist—since no crime occurred!
Whether the actual rate of the wrongly convicted actually innocent is less than one percent or much higher, this I know for sure. I am one, and it can happen to you.
Steph Turner is the founder of Value Relating, offering the wrongly convicted a radically unique way to overcome the injustice they endure.