Sunday, 20 June 2004

Prosecutorial Zealotry

This week, the investigative show Frontline on PBS had another expose on innocents behind bars in America. This one, called The Plea, focused on the role of plea bargaining in increasing the likelihood that a defendent would either confess to a crime they did not commit, or in maintaining their innocence, increase the severity of the sentence they receive, and further tie the hands of parole boards who are enjoined not to approve early release of prisoners not showing sufficient remorse. How can remorse be genuine on the part of someone who isn't guilty?

These shows evoke a deep visceral reaction in me, beyond what is typical when I learn of other social injustices. Many would think that my reaction is out of proportion to the problem, which certainly affects a minority of convictees. I will concede that a substantial majority of convictions are of people who are actually guilty, and that the number of guilty who are suspected and not tried for lack of evidence, or who are acquitted, likely exceeds the number of innocents who are convicted. But the utter needlessness of so many of these cases being prosecuted, when the doubt of their guilt should be plainly obvious to prosecutors - if not at the outset of the trial, then at some point in the process - just raises my hackles like little else.

Especially troubling was the case of a woman whose stubbornness in refusing to plead guilty to a crime she claims not to have committed has kept her in prison through what would have been the prime of her life. There is simply no plausible explanation for a guilty person maintaining her innocence when she could have walked free after 10 years in prison simply by pleading guilty. One year ago after 26 years in prison, a clemency board refused to free her without explanation. The parole board who will hear her case next year is not expected to grant parole, since the prisoner is unlikely to express remorse for a crime she didn't commit. One can reasonably argue that such cases should be overturned simply on the basis that there is no logical explanation for such people maintaining innocence other than being innocent, never mind that the original evidence against this woman was flimsy and circumstantial to begin with. Of course the problem with that is, if it became automatic to overturn cases for illogically maintaining innocence, then maintaining innocence would no longer be illogical.

There are several organizations out there who are working this problem from different angles, so I am not alone in my concern. I've been aware for a while of The Innocence Project which has exonerated 144 prisoners using DNA evidence as their primary tool. The Center for Public Integrity has a branch which investigates prosecutorial misconduct and has discovered substantial recidivism on the part of numerous overzealous prosecutors around the country. Chicago's Northwestern University maintains a Center on Wrongful Convictions whose work in exposing and documenting cases of innocents on death row was vital in Illinois Governor Ryan's moratorium on executions.

To their credit the current House of Representative passed The Innocence Protection Act in November of last year, which grants "any inmate convicted of a federal crime the right to petition a federal court for DNA testing to support a claim of innocence.". This does nothing to help those defendants where DNA cannot help. It seems to me it's time to start retiring those prosecutors who repeatedly engage in misconduct likely to result in the convictions of innocent people. I'll not support a simplistic "three strikes" rule for firing prosecutors, because such formulas invariable inject too much luck into the process, but certainly prosecutors who have convicted multiple exonorees, or who have been censured for misconduct on multiple occasions deserve investigation with the possibility of losing their jobs. I suspect the threat of job loss for prosecutors will be a better deterrent to their misconduct than the possibility of facing the death penalty will ever be for a person considering the commission of a capital crime.

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