A number of high-profile exonerations have made national headlines this month.
Among November’s exonerations was that of David Morris, a Maryland man whose murder conviction was secured when the prosecutor illegally withheld crucial exculpatory evidence from his defense.
Two weeks after the judge in the Morris case threw out his conviction, on Nov. 17, the Manhattan District Attorney’s office announced that two men convicted of killing Malcolm X in 1966* would be cleared of all charges, due to misconduct by the Federal Bureau of Investigation and the prosecutors in their cases.
And this week, the New York Times reported on the exoneration of the so-called “Groveland Four” who were falsely convicted of rape in 1949. One day later, the Times also reported on the case of Kevin Strickland, freed from prison after serving 43 years for murders he did not commit.
Over the last three decades, there have been 2,891 cases in which someone was released from prison after being sentenced for a crime they did not commit. According to The National Registry of Exonerations the victims of those miscarriages of justice spent more than 25,600 years behind bars, with 11 of them serving four decades or more in jail.
When these cases do elicit any comment, most suggest they are an aberration in the nation’s allegedly reliable criminal justice system. But each exoneration, including the most recent set that have made national headlines, raise both new and long overdue questions about miscarriages of justice, how they can be prevented, and what society owes to the exonerated.
These stories suggest that wrongful convictions are a recurring feature of, not an occasional flaw in, the American criminal justice system.
They are most likely to occur where the crimes are most serious, the public pressures to find the perpetrator are greatest, and the penalties–long prison terms or the death penalty—are most severe.
Yet exonerations, whether highly publicized or not, are only the tip of the iceberg.
Just below the surface are many more miscarriages of justice that have yet to be identified, acknowledged, and undone. Estimates of the number of innocent people in American prisons vary, with the low being 1 percent of the United States prison population, approximately 20,000 people, and the high end being 10 percent or more than 200,000 people.
All too often, the response to such startling numbers and grievous wrongs is complacency or acceptance. They are written off as what the crime correspondent Duncan Campbell has called “genuine accidents.” Or just the price of doing business in a system doing its best to provide fair trials and adequate procedural protections for the accused.
In another indication of such attitudes a recent Gallup Poll found that 78 percent of the respondents believed that there is “some risk that an innocent person will be put to death.” And yet, as the Gallup put it “the death penalty… continues to draw support from a majority of Americans despite widespread doubts about its administration.”
Occasionally the response to wrongful convictions is cruel and callous.
Such cruelty and callousness were displayed in the Supreme Court case of Herrera v. Collins in 1993 by former Supreme Court Chief Justice William Rehnquist.
In this case, Herrera wanted to challenge his death sentence based on evidence of his innocence that surfaced eight years after his conviction.
“Petitioner asserts,” Rehnquist wrote, “that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who is innocent of the crime for which he was convicted. This proposition has an elemental appeal, as would the similar proposition that the Constitution prohibits the imprisonment of one who is innocent of the crime for which he was convicted. After all, the central purpose of any criminal justice is to convict the guilty and free the innocent.”
Yet in a breathtaking denial of Herrera’s actual innocence claim, Rehnquist concluded that “’[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.’ To conclude otherwise would all but paralyze our system for enforcement of the criminal law.”
The sheer number of wrongful convictions as well as the high-profile exonerations that have surfaced this month should not be met by such cruelty or complacency. They should galvanize a top to bottom reform of many of the standard practices in police departments, prosecutors’ offices and courts around the country. And they should raise a concerted national effort to strengthen fail safe methods needed to stop the epidemic of wrongful convictions.
Those efforts should begin with banning testimony by jailhouse snitches, prohibiting the use of deception in interrogations as Oregon did this year, and reforming police lineup and identification practices to require “double-blind” lineups, in which the officer conducting the lineup doesn’t know who the suspect is as Louisiana did in 2018 following the exoneration of Malcolm Alexander, who spent nearly 38 years in prison for a rape he did not commit.
And, as the novelist John Grisham proposed in an August, 2021 Washington Post op ed, reforms should involve “removing the broad immunities that police and prosecutors now enjoy, and holding them accountable for when they engage in misconduct.”
These kinds of reforms are long overdue, but do not go far enough.
They need to be supplemented by state and federal legislation establishing Conviction Integrity Units of the kind now found in only 24 jurisdictions across the country. These units should be set up as independent bodies with authority to supervise every prosecutors’ office. They are needed to try to prevent wrongful convictions before they occur and to correct them when they do.
When states cannot stop these grievous wrongs, governments need to adequately compensate those who are erroneously sent to prison or sentenced to die for crimes they did not commit.
Today exonerees may pursue compensation claims in three ways: suing state actors, lobbying state legislatures to pass private compensation bills, or filing for compensation under a state statute. “The federal government, the District of Columbia, and 37 states have compensation statutes of some form,” according to a report by The Innocence Project, a non-profit working to free the wrongfully convicted.
In each of these systems exonerees bear the burden of action in compensation claims. State laws say only that exonerees “should have an available avenue to seek compensation.” Declaring that exonerees should have an avenue to seek compensation is a far cry from saying that “exonerees must be compensated.”
When exonerees do sue, file statutory claims, or lobby legislators, none of those things leads either to adequate monetary compensation or the kind of social services needed to help exonerees successfully transition to life outside prison.
And in many cases, including Strickland’s, who was released from prison in Missouri after 43 years, they get nothing. State law in Missouri allows for payments only to prisoners who prove their innocence through a specific DNA testing statute. That was not the case for Strickland, or most exonerees across America.
While compensation for the wrongfully convicted can never make up for the injury done to them,we can at least ensure that exonerees get redress quickly and easily. Compensation must be generous, inclusive, and complete.
In the end, Grisham, who spent years working as an attorney before becoming a novelist, got it right when he said that in the United States, “It is infuriating that our criminal justice system is so broken that bogus convictions happen at all. Innocent lives are destroyed. The guilty roam free. And the police and prosecutors are almost never made to answer for their bad behavior.”
Perhaps this month’s highly publicized exonerations will help public officials and citizens to face and fix those facts. More than infuriating, miscarriages of justice within our criminal justice system are ethically unacceptable, and it is up to lawmakers, prosecutors, judges, and the police to do better.
Correction: A previous version of this article misstated the year Malcom X’s accused killers were convicted. It was 1966 not 1996.
