Estimating the magnitude of wrongful convictions

667 words

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.

1. 0.016%–0.062%

Cassell, P. G. (2018). Overstating America’s wrongful conviction rate? Reassessing the conventional wisdom about the prevalence of wrongful convictions. Arizona Law Review, 60:815-863.

2. 0.027%

Scalia, A., Kansas v. Marsh, 548 U.S. 163 (2006).

Justice Scalia cites: Marquis, J. (2005). The myth of innocence, J. Crim. L. & C. 95:501-521.

Also see Campbell, W. A. (2008). Exoneration inflation: Justice Scalia’s concurrence in Kansas v. Marsh. LACJ Journal, 49-63.

3. .5%-1% (oft-cited “conservative” estimate)

Zalman, M. (2012). Qualitatively estimating the incidence of wrongful convictions. Criminal Law Bulletin, 48:2, 219-279.

Zalman makes a parenthetical observation that is noteworthy: "[T]he ideology, activism, and institutional contexts of actors and writers on all sides of this issue ought to be acknowledged."

Schwartzapfel, B., & Levintova, H. (2011). How many innocent people are in prison? Mother Jones. Archived 2019-01-08.

4. 2.3%

Gross, S. R., & O’Brien, B. (2008). Frequency and predictors of false conviction: Why we know so little, and new data on capital cases. Journal of Empirical Legal Studies, 5:4, 927-962.

This Gross & O'Brien estimate critiqued downward in:

Leo, R. & Gould, J. (2009). Studying wrongful convictions: Learning from social science. Ohio State Journal of Criminal Law, 7:7-30.

5. 3.3 - 5%

Risinger, D. M. (2007). Innocents convicted: An empirical justified factual wrongful conviction rate. Journ. Crim. L. & Criminology, 97:761-806.

6. 4.1%

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.

7. 11.6%

Walsh, K., Hussemann, J., Flynn, A., Yahner, J., Golian, L. (2017). Estimating the prevalence of wrongful conviction. Office of Justice Programs’ National Criminal Justice Reference Service.

8. 37.7%

Poveda, T. G. (2001). Estimating wrongful convictions. Justice Quarterly, 18:3, 689-708.

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.

Steph is a self-described transspirit, which is a kind of sacred misfit. By transcending conventional limits—gender norms, religious identities, political polarities, and more—Steph experiences a unique connection in life. And suspects others do as well. This blog shares that spirituality, and affirms others of a similar state of being.

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