I've been listening to a podcast I wish was around when I was in high school—I probably would have gone to law school earlier than I did. Listed by Rolling Stone magazine as one of the 10 podcasts everyone should follow, "Actual Innocence" was started by Brook Gittings, a social worker who—after watching the Netflix series, the "Making of a Murderer"—realized how little she knew about our judicial system. Her desire to learn led her into the world of wrongful convictions, which has now become the driving force behind her podcasts. Each episode tells the story of a person who has served time in the system for a crime they didn't commit. Like Brian Banks (shown in the image above) who served for more than a decade for a crime he didn't commit, Actual Innocence puts a spotlight on the growing number of wrongfully convicted.
Gittings, like most Americans, had little to no direct contact with the judicial system. She admits that before her assumptions were challenged she would have said that we had a fair system. But like the average American, with the exception of minor traffic violations, divorce proceedings, or an occasional dispute in small claims court, what she knew about the judicial system came to her through movies or television dramas. Sadly, TV dramas and movies paint a misleading picture. Data tells us that the average American has a lot to learn.
We are reared to believe that ours is a nation of laws and that the U.S. criminal justice system is blind to race, religion or station in life. But the reality is that if you are poor and black you are more likely to serve time in prison than if you have money and are white -- even for the same crime. The reality is that since the introduction of DNA evidence, one out of nine people on death row has been exonerated (how many innocent death row inmates were executed before DNA technology was available?). The reality is that the overwhelming majority of people serving time for a criminal offense in the United States never had a trial -- unless they had money.
As much as 97% of federal criminal cases end with a plea bargain, which means the defendant and the prosecution struck a deal—a guilty plea in exchange for a lighter sentence. This business of having your day in court as depicted on TV and in the movies is largely fiction. Our criminal justice system today is almost exclusively a system of plea bargains—no trials, no juries, and no discovery with defense counsel and judges having little to no say.
What was designed to be one of the greatest assets of our criminal justice system—the discovery process with a trial by jury—is largely a relic of the past. And the system it was supposed to support has increasingly become a predatory one or, as famed defense attorney Bryan Stevenson says, “We have a system of justice that treats you better if you're rich and guilty than if you are poor and innocent.”
In fact, the late Supreme Court Justice Antonin Scalia believed that actual innocence was not a strong enough reason to overturn a conviction, even in the face of a death sentence. He once said that the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that he is ‘actually innocent' is not a legal basis to overturn the conviction or, in other words, not enough reason to stop an execution. Let me say that again, loudly -- according to the late Chief Justice of the United States Supreme Court, ACTUAL INNOCENCE IS NOT ENOUGH TO STOP AN EXECUTION
This jaw-dropping truth stands in sharp contrast to the protections most Americans believe are enshrined in the Bill of Rights of the U.S. Constitution. Surely the Founding Fathers did not intend to create a system that results in tens of thousands of innocent people being incarcerated annually and—in a few cases—being put to death.
Our system is so bloated, so prone to mistake and frankly, so rife with prosecutorial misconduct, that today there are enough people convicted of a crime who were later determined to be wrongfully convicted that they have an annual conference. The Innocence Network holds an annual conference that brings together members of the innocence movement, including attorneys, exonerated individuals, and their families. At their 2019 conference there were more than 950 attendees.
In a piece published by Mother Jones magazine entitled, “How Many Innocent People Are in Prison?” writers Beth Schwartzapfel and Hannah Levintova admit that answering that question definitively is almost impossible. But they say,
“Extrapolating from the 281 known DNA exonerations in the US since the late 1980s, a conservative estimate is that 1 percent of the US prison population, approximately 20,000 people, are falsely convicted.”
Several studies by respected institutions support this estimation—some believe the number is higher. So the question is what can be done?
The bullets below are a small sample of suggestions I've found searching the web. Using sites like the Equal Justice Initiative, the Innocence Project, the Sentencing Project, and the Prison Policy Initiative I cobbled together a small sampling of actions average people can take:
- Get rid of the money bail system. The money bail system is used in just two countries—the United States and the Philippines. Every year thousands of people in the U.S. are jailed while they await their trial simply because they can’t afford to post bail. These people are technically innocent. Recent research found that, compared to people who are released sometime before their trail starts, people held in jail the whole time before their trial were four times more likely to be sentenced to jail and three times more likely to be sentenced to prison. There are alternatives to this system that have a proven track record of success.
- Support Alternatives-to-Arrest and Alternative-Incarceration Programs. Fifty years ago the U.S. incarceration rate in the United States was on par with similarly situated nations. Over the past four decades, changes in law and policy have resulted in the nation's prison population ballooning by 500%. This growth has outpaced the crime rate and research suggests over the long term, that it has actually increased the crime rate.
- Support Laws That Reduce Overly Harsh Sentences. People are serving life sentences for non-violent drug offenses. The United States is unique among countries in the "civilized" world to handle these types of offenses this way. Clearly this method is not producing the desired outcome as is evidenced by our high recidivism rate. We should work on eliminating mandatory minimum sentences and cut back on excessively lengthy sentences by using an alternative to incarceration for these types of offenses.
- Hold Prosecutors and Police Responsible for Deliberate Misconduct. Police and prosecutors are known to have deliberately engaged in misconduct like hiding or destroying evidence that could clear the accused of charges, using false evidence to make a defendant appear guilty, relying on testimony that is known to be false, and obtaining and then using coerced confessions. In the 40 years since the U.S. Supreme Court granted prosecutors absolute immunity for acts committed in their prosecutorial role, judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences in over 2,000 cases. In the vast majority of these cases, the wrongdoing went unpunished.
- Require All States to Provide Compensation to the Exonerated. Only 30 states, plus Washington D.C., have laws that provide compensation to the wrongly convicted. Some of these laws provide only token support to the exonerated, while 20 states provide no compensation at all. When the criminal justice system makes a grievous mistake by sending an innocent person to prison, the state has a moral and ethical responsibility to make amends by providing adequate financial support, counseling, educational and job training, and housing. If your state doesn’t have a law, ask your legislator to pass one.
- Reform or abolish Plea Bargaining. Timothy Lynch of the Cato Institute has presented a strong argument in favor of abolishing the plea bargain system. He believes it is unconstitutional because the plea bargaining system encourages the government to pressure an individual to waive a Constitutional right and then punishes defendants who chose to exercise their Sixth Amendment right to a trial by jury.
- End the Death Penalty. Judge Boyce F. Martin, Jr. of the U.S. Court of Appeals for the 6th Circuit called the death penalty "arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair." The number of innocent people exonerated who were on death row continues to grow and, according to the American Bar Association, in 96% of states where there have been reviews of race and the death penalty there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. Few countries continue this barbaric practice among them are the United States, China, North Korea and Pakistan.
Over the past 40 years the United States has witnessed a prison population explosion of unparalleled proportion. Social scientists and other scholars can give you a laundry list of reasons for this unprecedented growth but most striking is that a need to increase public safety is missing from that list. Most experts agree that the U.S. locks up more of its citizens than any other nation without regard to public safety.
A factor that doesn't get discussed enough is the public's naive belief in the fairness of our justice system. You don't have to be a rocket scientist to see that the United States has a legal system that dwarfs that of every other nation—but a justice system it is not. The case of Brian Banks is but one example.
If, according to a former justice on the highest court of the land, actual innocence is deemed to be irrelevant when deciding to move forward with an execution, how the hell can we call what we have a justice system?