Wrongful Convictions

Introduction

Kevin Strickland was released from a Missouri prison in November after 43 years when a judge set aside his conviction for a triple murder he maintains he did not commit. More than 3,000 wrongly convicted people have been exonerated since 1989. Dozens of states have adopted reforms to prevent such convictions. (Getty Images/Kansas City Star/Tribune News Service/Tammy Ljungblad)

Go to top

Overview

Last November, 62-year-old Kevin Strickland was released from prison after serving 43 years for a triple murder he claimed he did not commit. Hours earlier, Missouri Judge James Welsh had set aside his conviction.

Strickland had been sentenced to life in prison in 1979, at age 19, after being convicted of participating in the murder of three young adults. No physical evidence tied him to the crime, and family members provided alibis. The jury's decision rested on the testimony of Cynthia Douglas, the sole survivor of the shooting.

Four months after Strickland went to prison, one of two men who pleaded guilty to the murders told the court that Strickland had not been involved and that Douglas must have mistaken Strickland for another teenager during a lineup. Douglas soon came to believe she had erred, saying a detective had pressured her to select Strickland. Over several decades, she tried to recant her testimony, but prosecutors refused to accept her claims and threatened to charge her with perjury, she and her sister have said. Douglas died in 2015.

But in 2020, the Kansas City Star published an exposé of the case. A few months later, the Midwest Innocence Project, an organization based in Kansas City, Mo., that is dedicated to exonerating innocent people, asked the prosecutor to open an investigation. It uncovered new evidence, including fingerprints, supporting Strickland's innocence claim.1

No one knows how many Americans have been wrongfully convicted. More than 3,000 individuals have been exonerated since 1989, after having collectively served more than 26,700 years behind bars, according to The National Registry of Exonerations, a project of three law schools. But innocence advocates say most false convictions go uncorrected, and innocent people continue to be incarcerated.

To address the problem, states have adopted an unprecedented number of procedural reforms over the past 20 years, such as changing how police interrogate suspects and conduct lineups, providing greater access to post-conviction DNA testing and checking the veracity of jailhouse informants. Nevertheless, wrongful conviction remains “an incredibly serious problem,” says Rebecca Brown, director of policy at the New York-based Innocence Project.

Greg Hampikian, left, a Boise State University criminal justice and biology professor, and Gianluca Peri, a forensic analyst, study DNA evidence to help exonerate wrongfully convicted inmates. (AP Photo/Idaho Statesman/Katherine Jones)

But others say wrongful convictions are not the serious issue that advocates make it out to be. “Clear progress is being made toward addressing the wrongful conviction problem,” said Paul Cassell, a professor of criminal law at the University of Utah. “And that progress should mean that the wrongful conviction rate in America today is noticeably lower than it was in earlier decades.”2

Eight studies by legal scholars, social scientists and research institutions over the past 20 years have suggested the wrongful conviction rate for violent crimes — such as murder or sexual assault — ranges from 1.4 to 15 percent, depending on the crime. Others, such as Cassell, have calculated an overall wrongful conviction rate for violent crimes of a fraction of 1 percent.3

“The estimates vary widely, but in terms of nailing down a precise rate, I don't think it is possible,” says Robert Norris, an assistant professor of criminology, law and society at George Mason University, in Fairfax, Va.

There are numerous reasons for the difficulty. First, The National Registry of Exonerations and the New York-based Innocence Project, which lists only exonerations made through DNA evidence, may miss cases.

“We sometimes find out about exonerations five or seven or 10 years after the fact, and that means there are probably many others who we never hear about,” says Samuel Gross, an emeritus professor at the University of Michigan Law School and the senior editor and co-founder of The National Registry of Exonerations. “The much bigger issue is that most people who are convicted of crimes they didn't commit are not exonerated, and we just don't have any idea how common that is.”

In addition, little is known about how common wrongful convictions are for misdemeanor crimes, such as assault and battery, drug possession, theft and traffic offenses. They make up the great majority of criminal convictions, yet they account for only 4 percent of exonerations counted in the registry. The registry offers an explanation for this: “Exonerations are expensive, time-consuming affairs. The scarce resources they require are generally reserved for [felony] convictions that send innocent people to prison for many years.”4

Nevertheless, a misdemeanor conviction can devastate a person's life, says Brown. The penalty may be a fine or less than a year in jail, but the record trails an adult forever. “It affects child custody, housing, employment — all kinds of things — so the collateral consequences of any conviction are enormous,” she says.

Despite the uncertainty over the wrongful conviction rate, many consider even a small percentage a grave problem because of the large number of people convicted of crimes in the United States. With roughly 2 million people in prison and 4 million on probation, parole or supervised release, a wrongful conviction rate of 3 percent would translate to 180,000 affected individuals, says Norris. Wrongful convictions highlight “the broader problem of how expansive our kind of criminal legal system is in the United States.”

Some common causes of wrongful convictions include false confessions, false or misleading forensic evidence and — especially in cases of sexual assault — mistaken witness identification.5 “Our human memory doesn't record things like a video camera, and it was never intended to,” Radha Natarajan, executive director of the New England Innocence Project in Cambridge, Mass., says about witness misidentification.

Studies also show that human memory is malleable and easily influenced.6 “Depending on the questions asked, the statements made and the procedure followed, [police] can actually create a false memory,” says Natarajan. Police should follow best practices, she says, such as informing witnesses that they do not have to make an identification from a lineup or photo array and having an officer who is unaware of the suspect's identity conduct the procedure. “Police officers who know who the suspect is can steer the witness, even inadvertently, toward the suspect, and that can lead to a misidentification,” she says.

Official misconduct was a contributing factor in more than half the cases that resulted in exonerations in the national registry. This can include witness tampering, misconduct during interrogations, fabricating evidence, perjury during a trial or concealing evidence that is “exculpatory” — that is, tending to prove innocence rather than guilt.7

Long Description

But studies show that police and prosecutors are rarely punished for intentional misconduct, and varying degrees of immunity can shield them from civil lawsuits.

For example, prosecutors have absolute immunity when fulfilling their prosecutorial function and qualified immunity when helping the police. In their prosecutorial role, “they cannot be held accountable, and they can do real harm to real people,” says Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project in Washington, D.C., who would like to see such immunity eliminated.

But others defend it.

Attorney Jennifer P. Noble, a legislative liaison for the Nevada District Attorney's Association, said immunity protections “do not allow prosecutors to evade responsibility for misconduct.” Such protections, she said, “are narrowly tailored safeguards designed to preserve a prosecutor's independent judgment.” Prosecutors who abuse their power or violate the law can still be criminally prosecuted and investigated by state ethics boards, she said.8

Also in dispute is the degree to which wrongfully convicted people should receive financial compensation. Innocence advocates say such compensation should be more generous. Thirty-seven states and the District of Columbia have statutes to provide financial relief, and they have paid a total of $774 million to date under these laws.9

But statutes vary widely. For example, Strickland will not receive any compensation because Missouri compensates falsely convicted individuals only when they are proven innocent through DNA testing. “The vast majority of folks who are exonerated are exonerated through non-DNA evidence, and the vast majority of crimes do not involve DNA at all,” said Tricia Rojo Bushnell, Strickland's attorney and the executive director of the Midwest Innocence Project.10

When asked on a radio program about compensation for Strickland, Gov. Mike Parson, a Republican, questioned whether it was the responsibility of all Missouri taxpayers. “If he was wrongfully convicted in a county or in a city, what responsibilities do they have to that?” asked Parson.11

Researchers say the harms of wrongful convictions extend beyond the individuals who served time, to include their family, friends and communities — as well as victims of the original crime, who may realize they unwittingly played a role in putting an innocent person behind bars.

The circles of harm also include “the victims of crimes that the actual perpetrator went on to commit after not being arrested the first time,” says Frank Baumgartner, a professor of political science at the University of North Carolina, Chapel Hill. Of 36 known exonerations in North Carolina, the true perpetrator was ultimately arrested in nine cases, according to a study conducted by Baumgartner and colleagues. Six of those perpetrators are known to have committed 99 crimes while still on the streets, including 13 violent crimes.12

Experts say the attention to exonerations in recent decades has contributed to the documented decline in public support for the death penalty, which the U.S. Supreme Court declared unconstitutional in 1972 but reinstated in 1976.

Long Description

“There is no way to tell how many of the 1,543 people executed since 1976 may also have been innocent,” according to the Death Penalty Information Center in Washington, D.C. “Courts do not generally entertain claims of innocence when the defendant is dead.” But the center says there is strong evidence that as many as 20 innocent prisoners have been put to death in the United States.13

Others, however, dispute those numbers. “There has been no definitive proof that an innocent person has been executed in the nearly 50 years since the Supreme Court reinstated the death penalty in 1976,” writes John Malcolm, of the conservative Heritage Foundation's Institute for Constitutional Government and the Meese Center for Legal & Judicial Studies. (See Pro/Con.)

Here are some of the questions being debated by criminologists, lawyers, prosecutors, forensic scientists and others involved in the conversation around wrongful convictions:

Are wrongful convictions a serious problem?

Gauging the seriousness of the wrongful conviction problem inevitably leads to the question of prevalence. And most estimates about the rate of wrongful convictions should invite skepticism, says Gross, The National Registry of Exonerations co-founder, because for most crimes there is little information on which to base a calculation.

The best available standard for measuring the rate of wrongful convictions in the United States is exonerations. But it is a seriously flawed metric, say experts. Gross says existing data on exonerations do not begin to capture the total number of wrongful convictions. Most will never be uncovered, he says, because exonerations require such intensive effort, involving years of research, money, detective work, a skilled legal team — and determination.

In addition, data on exonerations do not represent the true scope of the problem because efforts to exonerate someone are mostly undertaken for convictions for serious felonies, which draw the longest prison terms and attract the most resources to investigate claims of innocence.14

Perhaps the most accurate estimates of wrongful convictions can be made for death sentences, which represent less than 1 percent of prison sentences but 12 percent of known exonerations, according to a 2014 report by Gross and his colleagues. That is not surprising, they said, because all death sentences are reviewed on appeal, many repeatedly, and often attract attention from innocence advocates and experienced defense attorneys.15

As a result, it is possible that a substantial proportion, even a majority, of wrongful convictions among death row inmates are likely to be discovered, they said. So, they used exonerations among this group to estimate a “conservative” false conviction rate among all individuals sentenced to death between 1973 and 2004, including those whose sentences were later reduced to life in prison. After making some statistical adjustments, they arrived at an estimate of 4.1 percent.16

George Mason University professor Robert Norris says determining the full scope of the wrongful convictions problem is extremely difficult. (Screenshot/George Mason University)

Marvin Zalman, a professor of criminal justice at Wayne State University in Detroit, and George Mason's Norris examined more than a dozen published estimates of wrongful conviction rates. These studies used different methodologies, data sets and assumptions. Many, like the one by Gross, looked at one type of serious felony, while some examined data from a single state or from cases in which DNA evidence was used.17 Others that tried to make a more general estimate of an overall rate for violent crimes were less statistically sound, says Norris.

The estimates ranged from near zero to 15 percent. “As with most everything, the truth, as always, is somewhere in the middle, probably in the 3 to 5 percent range,” Norris says.

One of the lowest estimates comes from Cassell of the University of Utah, who calculated a maximum wrongful conviction rate of less than 0.1 percent. He took issue with scholars who commonly cite higher figures and “suggest a pressing need to adopt broad criminal justice reforms to reduce error rates even further.” For example, in making his calculations, Cassell assumed a much lower rate of wrongful conviction at trials than some other studies.18 (A wrongful conviction rate must take into account convictions from both trials and guilty pleas.)

George Thomas III, a distinguished scholar and professor at Rutgers University Law School-Newark, has estimated a similarly low wrongful conviction rate, extrapolating from innocence claims prisoners have filed with the North Carolina Innocence Commission. He estimated the rate of wrongful felony convictions in the state at somewhere between 0.125 percent and 0.5 percent.19

Thomas says he arrived at this estimate, in part, by adopting the assumption that 75 percent of the people who claim to be innocent were in fact guilty. Thomas based that figure on data about the percentages of people who seek post-conviction DNA testing who either have their guilt confirmed by the test or an inconclusive outcome.20

Thomas also made assumptions about the number of innocent people who did not bother to file claims, because, for instance, their prison terms were short and the application process onerous. “It's a 20-page application and you have to waive all sorts of rights,” says Thomas. “And if you've only got six months to serve, you probably won't even bother.”

Thomas acknowledged that his assumption about how many people were lying could be off by a factor of two in either direction, adding that this is why he provided a range.

However, Zalman and Norris said both Cassell's and Thomas’ papers “contain serious methodological flaws” and “assumptions that are not validated.” For example, they criticized Cassell's assumption about guilty pleas. Very few criminal cases in the United States go to trial, because approximately 95 percent of convictions are the result of guilty pleas. But Cassell assumed that very few defendants who plead guilty are innocent, say Zalman and Norris.

“Based on the psychological literature on plea bargaining, I don't think that's right,” says Norris. Offered a shorter sentence during an often intense and coercive interrogation, some innocent defendants will take a plea bargain rather than risk a trial, he says.

Thomas says he favors some reforms to limit false confessions, such as requiring interrogations to be taped and imposing limits on police lying to juvenile suspects. “We do know that false confessions are out there,” he says. But he warns, reforms can backfire.

For example, he said, in response to research about eyewitness misidentifications, the New Jersey Supreme Court in 2011 ordered judges to change their instructions to juries. “The intent … was to make juries more skeptical of questionable identifications but not at the cost of making juries skeptical of all identifications,” Thomas said. But a study of mock jurors found that the new instructions “reduced jury reliance on all eyewitness evidence.”21

The experiment suggests that fewer innocent defendants are convicted in New Jersey since the change, he says, but more guilty defendants may be going free.

Long Description

And that, says Natarajan of the New England Innocence Project, leads to a core issue: “As a community, we have to decide, do we think it's worse for fewer people to be convicted, even if some of them are guilty, or do we think it's worse for more people to be convicted even if some of them are innocent?”

Natarajan was not surprised by the results of the New Jersey study, because such jury instructions are given at the trial's conclusion. As a result, “jurors can't apply whatever they've learned from the instructions to testimony as they are hearing it,” she says.

“The bottom line is it is really hard to tell whether an eyewitness is accurate or not,” says Natarajan. But other reforms can help reduce the chance of a misidentification, she says, such as changing how police question eyewitnesses.

Should police officers and prosecutors be liable for misconduct that produces wrongful convictions?

Jabbar Collins spent 15 years in prison for murder before a Brooklyn judge vacated his conviction in 2010. Through his own sleuthing, Collins had discovered that key witnesses, under pressure from police and prosecutors, lied at his trial.22

Collins ultimately filed a civil lawsuit seeking monetary damages against his prosecutor, the Brooklyn district attorney and New York City, but only the lawsuit against the city moved forward. “I had to dismiss the case against the prosecutor and the district attorney on the grounds of prosecutorial immunity,” said Frederic Block, the federal district judge in the case. But he was not happy about it. “It seems to me that the time has come to create some level of accountability for prosecutors,” the judge wrote in a commentary in which he called for “the cloak of absolute immunity” to be “judicially or legislatively lifted.”23

U.S. District Court Judge Frederic Block said prosecutorial immunity forced him to dismiss a civil case against a Brooklyn district attorney who, along with police, pressured a key witness to lie in a murder trial that sent an innocent man to prison for 15 years. Block said prosecutors should be held more accountable for misconduct that can lead to wrongful convictions. (Screenshot/fredericblock.com)

Prosecutorial misconduct contributed to wrongful convictions in 30 percent of exonerations listed in The National Registry of Exonerations. However, prosecutors have protection from civil lawsuits due to a doctrine established by the U.S. Supreme Court in 1976. The court held that prosecutors, when fulfilling their prosecutorial duties, have absolute immunity from civil rights lawsuits brought under the Civil Rights Act of 1871, which has since been expanded by federal courts. Such immunity protects prosecutors from civil liability even if they break the rules.24

Innocence advocates would like that protection eliminated.

“The goal is not just to deliver financial justice to victims of prosecutorial misconduct,” says Brown of the Innocence Project, “but to also disincentivize the kind of behavior that leads to wrongful conviction or other horrible justice outcomes.”

But prosecutors say absolute immunity is essential to their work. Without it, prosecutors would be reluctant to take on tough cases, such as sexual assaults where there are no corroborating witnesses, says Mark Vargo, the state's attorney for Pennington County, S.D., and chair of the legislative committee at the National District Attorneys Association in Arlington, Va.

“Let's say you took that case to trial, and you lost, and the defendant sues you and alleges that the victim is lying, you knew she was lying and you should not have taken this case to trial,” says Vargo.

He maintains that an adequate system already exists to punish and discourage prosecutorial misconduct. The opposing counsel or the defendant can lodge a complaint with the state bar association, which can suspend or revoke an attorney's license to practice law, he points out. “You can't be a prosecutor without a law license,” says Vargo. In addition, a prosecutor can be charged with criminal contempt of court.

But very few prosecutors who have committed misconduct in thousands of criminal cases have ever been disciplined, according to studies. In addition, the fear of civil lawsuits by disgruntled criminal defendants, whether found innocent or guilty, is overblown, said Bidish Sarma, a defense attorney who represents individuals sentenced to death or to life without parole. Courts easily dismiss frivolous lawsuits, he said. And, in 1994, the Supreme Court held that any criminal defendant found guilty would have to be exonerated before being allowed to file a civil suit, he added.25

Sarma argued that Congress or the Supreme Court should eliminate absolute immunity for prosecutors and extend “qualified immunity” to them that covers their prosecutorial actions. Prosecutors already have qualified immunity for their actions while conducting nonprosecutorial functions, such as advising the police. Innocence advocates agree that prosecutors’ absolute immunity should be eliminated and replaced with qualified immunity for everything prosecutors do. But the concept of qualified immunity is also problematic, they say, at least as it has been applied to police officers.

Under the doctrine, first recognized by the Supreme Court in 1967, plaintiffs suing police officers in federal court must demonstrate that the officer's actions violated a clearly established statutory or constitutional right. And over the past 20 years, the court has expanded the doctrine so that in order to win a civil lawsuit, victims must be able to cite a previous, identical case of police misconduct that was ruled unconstitutional.26

Because police misconduct has contributed to wrongful convictions in 35 percent of exonerations listed in the national registry and because of well-publicized instances of police brutality and even killings of Black men and women, Democrats in Congress have tried, but failed, to pass laws eliminating qualified immunity for police.27

Jim Pasco, the executive director of the National Fraternal Order of Police, says qualified immunity is not granted every time a police officer requests it and that the doctrine “protects police officers who have done their jobs properly from frivolous lawsuits.” Without the doctrine, it would be difficult to retain and recruit police officers, he adds.

Michael Steinberg, the director of the Civil Rights Litigation Initiative at the University of Michigan Law School, disagreed. “Attorneys will not take a case if it is frivolous because it would be a waste of time and resources,” said Steinberg. “Furthermore, judges will sanction attorneys and parties for filing a frivolous case and force them to pay the government's cost in defending a case.”28

In addition, when individual police officers are successfully sued in civil court, they rarely pay the damages themselves. Most states require local governments to pay officers’ legal expenses and any judgments, according to research conducted by Joanna C. Schwartz, a professor of law at UCLA. That would remain true even if qualified immunity were eliminated.29

Even though individual officers do not usually pay, eliminating qualified immunity could still reduce misconduct by creating an incentive for cities and counties to change their policies, practices and training, says Brown.

Most civil suits against police are brought in federal court. But suits can also be filed in state courts for alleged violations of a state's constitution or civil rights statute. In the past two years, New Mexico and Colorado eliminated qualified immunity for police officers who are sued in state court. In a twist, Colorado's law requires police officers who lose their cases to pay a maximum of $25,000 or 5 percent of the judgment, whichever is less.

“They have some skin in the game,” which can further deter misconduct, says Brown, adding that Colorado's law is a model for other states.

Pasco, whose organization opposed the law, fears other states will copy Colorado. “There is more to come,” he says.

Is enough being done to improve standards for forensic science?

Forensic evidence introduced in court is not always what it should be. The Innocence Project says that problems with forensic evidence have surfaced in 45 percent of DNA exonerations of wrongful convictions and 24 percent of all known exonerations in the United States.30

“This includes convictions based on forensic evidence that is unreliable or invalid and expert testimony that is misleading,” according to the project. “It also includes mistakes made by practitioners and, in some cases, misconduct by forensic analysts.”31

Forensic practitioners examine evidence from crime scenes and other places to assist in prosecution. Their efforts also can enable police to eliminate an innocent person from suspicion. They have distinct forensic specialties, including DNA, toxicology, fingerprint analysis, firearms and toolmarks analysis, fire and explosives examination and analyzing trace evidence such as hairs and fibers.32

It is up to each judge, using federal or state rules of evidence, to determine whether expert testimony is admissible at trial.33 But judges often rely on precedent and lack the skills and staff to determine whether forensic evidence presented by prosecutors is valid and reliable, says Julia Leighton, a former public defender in the District of Columbia.

“I'm not suggesting that judges can't and shouldn't be exercising that gatekeeper function,” but asking a single judge to fully address these issues is problematic, she says.

Thus, it is critical that forensic science practices be strengthened, say innocence advocates, who often disagree with forensic practitioners about how to do that.

In 2009, the National Academy of Sciences, an independent organization of leading researchers, issued a scathing report to Congress on the state of forensic science. In a 2016 follow-up report, the President's Council of Advisors on Science and Technology found that much more research is needed to boost the scientific validity of many forensic practices.34

The 2009 report recommended establishing a unified national research agenda. It urged that an independent entity be created to oversee the research and establish and enforce best practices and standards for forensic science.

That has not happened. Instead, in 2013, the administration of then-President Barack Obama, a Democrat, created the National Commission on Forensic Science to advise the Department of Justice, but the administration of former President Donald Trump, a Republican, did not renew the commission's charter.

The Obama administration also created the Organization of Scientific Area Committees for Forensic Science (OSAC) in 2014 to help develop and promulgate voluntary standards for the various forensic science disciplines. OSAC has published dozens of standards, which it calls “high-quality” and “technically sound,” ranging from how to interpret DNA evidence to standards for analyzing paint traces.35

But critics complain that, among other things, the standards are voluntary and organizations that accredit crime labs have not adopted them. As a result, says Sarah Chu, the Innocence Project's senior adviser on forensic science policy, “best practices are not regulated, and we rely on a voluntary system.”

Nevertheless, says Matthew Gamette, chair of the Consortium of Forensic Science Organizations, most forensic laboratory directors across the country are adopting the standards. “These are scientists that want to do the right thing,” says Gamette, who directs the laboratory system for Idaho State Police Forensic Services. “They want to see sound science in our courtrooms.” Five of the consortium's six members sit on OSAC's governing board.

However, critics also say some standards are flawed. In a 2020 journal paper, three academic researchers called some of the standards “vacuous” because they provide only a few vague requirements that are easy to comply with but are insufficient for obtaining scientifically valid results. As examples, they cite standards for assuring the quality of blood spatter analysis and for validating the procedures used in such analyses.

These empty standards “appear to be designed to allow laboratories and practitioners to continue with existing poor practice, and if challenged to be able to respond that they are following established standards,” the authors wrote.36

Gamette defends the OSAC. “It's fairly new, and … there is a learning process,” he says. “But the fact that we're talking about whether these standards are robust enough shows that we are progressing.” Besides, he says, the standards are reassessed every five years, and “as the science advances, as the field advances, these standards will be continually reviewed.”

Sen. Roger Wicker, R-Miss., sought in 2020 to strengthen forensic science practices by establishing a working group to coordinate research by academic and federal scientists to improve forensic standards. Wicker's bill died in the Senate. (Getty Images/Bill O'Leary)

But former public defender Leighton, who was a member of the National Commission on Forensic Science, says the volunteer OSAC subcommittees that develop the standards, along with OSAC's governing board, are too heavily weighted towards forensic practitioners rather than independent scientists. In addition, the system has an even more fundamental flaw, she says, in the lack of empirical scientific studies on which to base standards. “OSAC is essentially putting the cart before the horse,” she says, by drafting standards “in the absence of a lot of data about what are best practices.”

In 2020, Sen. Roger Wicker, a Republican from Mississippi, proposed a measure to, among other things, create a unified research strategy for forensic science that would draw on scientists from academia and across the federal government. The bill would have created an interagency working group that would establish short- and long-term research priorities.37 Innocence advocates supported the idea, and so did the Consortium of Forensic Science Organizations.

But the Major Cities Chiefs Association, an organization of police executives from the largest U.S. and Canadian cities, did not support the bill as written. That was because the working group would have been headed by the Office of Science and Technology Policy, which is part of the White House. Its director leads the President's Council of Advisors on Science and Technology, which issued the highly critical 2016 report on the state of forensic science.

Rather than being in the White House, whose occupant and agenda can change every four years, the association would prefer that a national research strategy be coordinated by a permanent office in the Justice Department, which oversees the FBI and its federal crime lab, says Michael Garvey, chair of the association's forensic science committee. The office would be filled by people who “understand the field,” he says, “working with academics, and, as needed, consulting with lawyers.”

The National Academy of Sciences report specifically rejected the idea of housing its proposed oversight entity within the Justice Department, whose principal mission is law enforcement.

“Forensic science … must be equally available to law enforcement officers, prosecutors, and defendants in the criminal justice system,” its report said. “The entity that is established to govern the forensic science community cannot be principally beholden to law enforcement. The potential for conflicts of interest between the needs of law enforcement and the broader needs of forensic science are too great.”38

Largely due to such disagreements, Wicker's bill died in the Senate.39

Go to top

Background

Early Reforms

Edwin Borchard, a Yale University law professor in the early part of the 20th century, conducted the first comprehensive case study of wrongful convictions in the United States. His 1932 book Convicting the Innocent described 65 such miscarriages of justice and challenged “the conventional wisdom that innocent people are never convicted in the United States,” wrote Richard A. Leo, a professor of law and social psychology at the University of San Francisco, in a 2008 book about the history of police interrogation.40

Borchard pinpointed several factors that led to wrongful conviction, including eyewitness misidentification, perjured testimony and police and prosecutorial misconduct, and suggested procedural reforms. In response, Congress passed a law in 1938 granting compensation capped at $5,000 to individuals who had served time in federal prison and could prove they had been erroneously convicted.41

Several popular accounts of wrongful convictions followed over the next three decades, including The Court of Last Resort, a 1952 nonfiction book by attorney and novelist Erle Stanley Gardner, the creator of the fictional defense lawyer Perry Mason. “Gardner's breezy style and popularity helped garner public attention to the plight of innocent people being convicted of crimes,” wrote criminal justice scholars James R. Acker and Catherine L. Bonventre in a 2010 law review article.42

Meanwhile, police interrogation techniques were changing. In the 1910s and '20s, police routinely used the “third degree” — referring to beatings, sleep deprivation and denial of food and water — to extract confessions from suspects. The police defended these violent techniques as necessary to combat the dramatic rise in gangland violence during Prohibition. But the third degree led innocent people to confess, and “no piece of evidence was more likely to lead to wrongful conviction than a false confession,” wrote Leo. This was before the 1966 Supreme Court decision, Miranda v. Arizona, which held that a suspect does not have to talk to police without an attorney present.43

By the 1930s, “the third degree had become a national scandal,” said Leo. Numerous newspaper investigations and a 1931 government commission report on lawlessness in law enforcement exposed and condemned the practice. In the 1940s the first interrogation training manual instructed police to never use the third degree, and its use declined. By the mid-1960s, police methods had become “entirely psychological in nature,” although some outlier police departments continue to use violence, said Leo.44

Prosecutors, too, were having to change their approach. In 1963, the Supreme Court ruled in Brady v. Maryland that the prosecution must disclose any evidence that might be favorable to the accused, such as that which would help negate a defendant's guilt, reduce a defendant's sentence or reflect on the credibility of a witness. Observers hoped the ruling would reduce convictions of innocent individuals. However, over the ensuing decades, the court narrowed the conditions for disclosure and made it increasingly difficult to prove a violation of the rule established in the Brady decision, said Michael Meltsner, a law professor at Northeastern Law School, in a 2017 book about DNA and criminal justice.45

In the 1970s, 14 individuals on death row were exonerated. Despite the exonerations and growing public attention, “as an issue for activism and reform, innocence lacked organization and was never sustained until the 1980s,” wrote Norris of George Mason University in a book about the history of the innocence movement. In addition, social scientists had not yet begun researching wrongful convictions.46

The DNA Revolution

In the early 1980s, corporate executive Jim McCloskey quit his job and entered Princeton Theological Seminary. While a student chaplain at Trenton State Prison, he met Jorge De Los Santos, sentenced to life in prison for a murder he claimed he did not commit. After reviewing the case, McCloskey came to believe De Los Santos and enlisted the help of attorney Paul Casteleiro. As a result of their efforts, De Los Santos was exonerated and freed from prison in 1983.

That same year, McCloskey created the nonprofit Centurion Ministries, the nation's first innocence organization, to help free other wrongfully convicted individuals. Major media outlets soon began paying attention to exonerations won by Centurion Ministries and other innocence advocates and to the issue of wrongful convictions. In 1988, filmmaker Errol Morris released the acclaimed documentary, The Thin Blue Line, which painstakingly analyzed the case of Randall Dale Adams, convicted of murdering a Dallas police officer in 1977. The year after the film was released, Adams was exonerated as a result of information uncovered in the film.47

“This period also saw the birth of modern innocence scholarship, as academics began to analyze wrongful convictions in new ways,” Norris and his coauthors said in a law review article. One 1987 study of 350 wrongful convictions in potential capital cases over an 80-year period found that false confessions had played a role in 14 percent of the cases, upending the notion that only guilty people confessed.48

Meanwhile, in 1984, British geneticist Alec Jeffreys discovered that patterns in DNA could be used to distinguish individuals. Initially, Jeffreys used DNA “fingerprinting” in paternity and immigration cases, but in 1987 British police used the technique to match a murderer to DNA left at two crime scenes.49

That same year, Tommie Lee Andrews became the first person in the United States to be convicted — in his case, of rape — based on forensic DNA evidence. “By late 1987, the trickle of [criminal] cases in which DNA was a factor became a flood,” said Norris.50

Sen. Patrick Leahy, D-Vt., left, talks with Kirk Bloodsworth, who in 1993 became the first death row inmate to be exonerated through DNA evidence. They were joined by Bloodsworth's attorney, Barry Scheck, right, co-founder of the Innocence Project, at the 2000 unveiling of a bill that sought to address wrongful convictions and capital punishment reform. (AFP/Getty Images/Chris Kleponis)

Legal advocates soon realized that this new prosecutorial tool could also be used to rectify cases of wrongful convictions in which biological evidence was available. In 1989, David Vasquez and Gary Dotson became the first individuals to be exonerated through DNA testing — Vasquez of a rape and murder in Virginia and Dotson of a rape in Illinois. In 1993, Kirk Bloodsworth, convicted of rape and murder eight years earlier in Maryland, became the first death row inmate to be exonerated through DNA evidence. Within five years, 74 others would be exonerated through the use of DNA.51

Before the advent of DNA testing, skeptics would often second-guess exonerations. But the new technology “unambiguously demonstrated the innocence of some individuals convicted, incarcerated, and occasionally sentenced to death for crimes they had not committed,” wrote scholars Acker and Bonventre.52

However, biological traces from which DNA can be extracted — such as semen, blood and hair — are found in less than 20 percent of crimes, according to Acker and Bonventre. Nevertheless, the development of DNA technology, along with the scholarly research and media attention of the 1980s and '90s, “laid the groundwork for what we now refer to as the ‘innocence movement,’” wrote Norris and colleagues.53

Innocence Movement

In 1992, Barry Scheck and Peter Neufeld started the Innocence Project as a legal clinic at the Benjamin N. Cardozo School of Law in New York City. The two had met as public defenders at the Bronx Legal Aid Society. Recognizing the power of DNA, they focused the clinic's work exclusively on exoneration cases in which DNA evidence was available. (In 2004, the Innocence Project became an independent nonprofit.)54

“In the early days of innocence work, there were no laws that supported the right to access post-conviction DNA testing,” the Innocence Project says on its website. “Each exoneration was hard fought and, at times, required changing state laws.” (All 50 states and Washington, D.C., now allow access to post-conviction DNA testing, although the laws vary in scope.)55

Meanwhile, the innocence movement was gaining steam in Illinois. After nine death-row exonerations in the state, Northwestern University law professor Lawrence Marshall in 1998 organized a three-day National Conference on Wrongful Convictions and the Death Penalty. More than 600 lawyers, academics and journalists attended, as did nearly half of the nation's 74 death row prisoners who had been exonerated.

“The high point of the conference came on the second day when the 31 exonerees walked one by one across a stage, each with slight variations telling the spellbound audience: ‘My name is —. If the state had its way, I'd be dead today,’” according to a history of the Illinois death penalty.56

“The conference … proved to be important for both the innocence and anti-death penalty movements,” said Norris.57

Soon after the conference, Anthony Porter, an inmate on Illinois’ death row, waited as his execution date approached. At the eleventh hour, a different man confessed, and in February 1999, Porter was freed. Gov. George Ryan, a Republican and death penalty supporter, reportedly was shocked that he had come so close to signing off on the execution of an innocent man. In addition, a Chicago Tribune series in 1999 found that 150 capital cases in Illinois had been reversed on appeal because of inadequate defense, reliance on jailhouse informants, recanted witness testimony, improper judicial rulings or prosecutorial misconduct. The series, along with Porter's exoneration and the Northwestern conference, led Ryan to declare a statewide moratorium on executions in January 2001 — the first in the country.58

Conference attendees had proposed building a network of innocence organizations at law schools across the country. Scheck and Neufeld created a course called Wrongful Convictions: Causes and Remedies, which they taught at Cardoza and distributed to other law schools. By 2000, 10 innocence projects had been established around the country.59

Five years later, 15 projects joined in a loose coalition called the Innocence Network and established principles and best practices as conditions for membership. Today the network is an affiliation of 69 organizations worldwide.60

Kevin Richardson, left, and Raymond Santana are two of the so-called Central Park Five, who were exonerated in 2002 after being wrongfully convicted as teenagers of raping a jogger in 1989. They speak here at a press conference in 2014, after settling a civil lawsuit with New York City for $40 million. (Getty Images/Andrew Burton)

In 2002, Justice Charles J. Tejada of the Supreme Court of the State of New York vacated the 1989 convictions of Antron McCray, Kevin Richardson, Raymond Santana, Korey Wise and Yusef Salaam for the notorious rape of a 28-year-old jogger in Central Park. The so-called Central Park Five, teenagers at the time, had falsely confessed during aggressive interrogations that used psychological pressure. Judge Tejada issued his ruling after a serial rapist confessed to the crime and his DNA matched the biological evidence.61

Federal and State Reforms

In 2004, Congress passed the Innocence Protection Act — part of a larger reform bill — which:

• established rules and procedures for federal inmates applying for post-conviction DNA testing;

• created grants to establish or improve legal representation of indigent defendants in capital cases or indigents appealing death sentences and

• increased the maximum amount of compensation for unjust federal conviction from a flat $5,000 to $50,000 per year of imprisonment in a noncapital case and $100,000 per year in capital cases.62

A year later, Congress asked the National Academy of Sciences to examine the state of forensic science. In 2009 the resulting report found serious deficiencies. “With the exception of nuclear DNA analysis … no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” according to the academy.63

The report called for the field of forensic science to be overhauled, and recommended, among other things, establishing:

• mandatory accreditation of laboratories and certification of practitioners,

• a government plan for conducting interagency peer-reviewed scientific research into forensic practices and

• an independent federal agency to oversee these activities and establish and enforce best practices for forensic science professionals and laboratories.64

Although no such agency was ever created, the Obama administration's National Commission on Forensic Science, comprised of forensic scientists, prosecutors, defense attorneys and judges, developed documents to guide improvements in forensic science. The creation of OSAC followed a year later.65

In 2015, Congress passed, and Obama signed, the Wrongful Convictions Tax Relief Act, which eliminated federal income taxes on state compensation awards for wrongful incarceration. Previously, such rewards were thought of as restitution for lost wages and taxed as income.66

That same year, Obama asked his Council of Advisors on Science and Technology to assess the progress made in reforming forensic science. In 2016, the council issued its report, finding serious deficiencies in some forensic practices, including bite mark and firearms analysis.67

Shortly after Trump's inauguration, his attorney general, Jeff Sessions, refused to renew the charter for the National Commission on Forensic Science, saying it would be replaced by an internal Justice Department task force.68

Most reforms to address wrongful convictions over the past 20 years have taken place at the state and local levels. For example, 37 states and Washington, D.C., now have compensation laws for individuals wrongfully convicted in state court who can prove their innocence. (See Short Feature.) In addition, 30 states and the District of Columbia require law enforcement to record interrogations, and seven states regulate the use of jailhouse witnesses, who often make favorable deals with prosecutors in exchange for their testimony.69

Many police departments, without prompting from state legislatures, have also changed their interrogation techniques and eyewitness practices to make them more reliable. And since 2002, districts attorneys have formed Conviction Integrity Units, divisions within prosecutorial offices that work to prevent, identify and correct false convictions.

As of November 2021, there were 41 units across the country with a record of exonerations, and 52, many of them relatively new, with no exonerations.

“It is still too soon to know whether this trend will produce a change in the way prosecutors operate generally,” according to The National Registry of Exonerations.70

Go to top

Current Situation

State Reforms

Legislatures continue to address some of the underlying factors that contribute to false convictions.

For example, Democratic lawmakers in Colorado, Florida and New York are proposing bills that would follow the lead of Illinois and Oregon, which last year became the first states to prohibit police from lying when interrogating minors.71

“The evidence is clear: The juvenile brain is wired to fall prey to deceptive interrogation tactics,” which can lead to false confessions, said developmental psychologist and attorney Maclen Stanley. “False confessions are a prevalent problem capable of upending the entire life of the wrongfully convicted while simultaneously undermining the credibility of the justice system.”72

Illinois Gov. J.B. Pritzker, a Democrat, said as he signed that state's bill, “My deep hope is that Illinois is setting an example for the entire nation to pass this law in all 50 states.”73

Some states are considering legislation that would apply to people of all ages who are in custody. For example, 12 members of Washington state's House of Representatives have sponsored a bill that would make statements from juveniles and adults alike inadmissible in court if they were made in response to intentional police deception during an interrogation. The House's Committee on Public Safety held a hearing on the bill in January but has not acted on it yet.74

The Innocence Project's Brown would like states to continue their reform efforts. In particular, she would like states to follow the lead of California, which last year made police disciplinary records public under certain conditions.75

Thirty-two states keep such records mostly or entirely private. Police unions say the practice keeps police officers safe. “The unfettered release of police personnel records will allow unstable people to target police officers and our families for harassment or worse,” said Patrick Lynch, head of the Patrolmen's Benevolent Association in New York City.76

However, Brown says such records need to be handed over to the defense so a police officer integral to a case can be confronted about past abuses, such as witness-tampering or fabricating evidence. Police misconduct can lead innocent people to plead guilty to avoid detention or get a reduced sentence, she says.

For example, in 2018, New York City police charged Jason Serrano with drug possession, resisting arrest and obstructing governmental administration after they pulled over his car. To avoid jail, Serrano agreed to plead guilty to resisting arrest. But in November 2021, a Staten Island judge vacated the conviction based on body camera footage that later surfaced suggesting officer Kyle Erickson planted marijuana in Serrano's car, and on Erickson's disciplinary records, which showed invoice discrepancies in two previous drug seizures. Prosecutors had never turned over those disciplinary records to Serrano's lawyers.77

A local public radio station unearthed the records during a long-running Freedom of Information Law campaign.

Minimal Action in Congress

Congress has been more resistant than state legislatures to taking action that could affect wrongful convictions.

After a sweeping police reform bill passed in the House last March along party lines, bipartisan talks on the measure in the Senate collapsed last September. The bill is named for George Floyd, the 46-year-old Black man killed in 2020 by Minneapolis police officer Derek Chauvin, who was later convicted of murdering Floyd.78

In addition to banning chokeholds and creating national standards for policing, the bill would severely limit the use of qualified immunity by police officers to protect themselves from civil lawsuits alleging misconduct, filed in federal court. While the driving force behind the bill was the deaths of Black men and women during encounters with police, the evidence that police misconduct has led to wrongful convictions also played a role. But Senate Republicans balked at making it easier to sue police, after police representatives argued that recruitment and retention of police officers would suffer if qualified immunity were weakened.

Rep. Karen Bass, D-Calif., and Sens. Tim Scott, R-S.C., and Cory Booker, D-N.J. (left to right), speak to reporters last May about a police reform bill that sought to ban chokeholds and set national policing standards. It died in the Senate over disagreements on whether to lift qualified legal immunity for police misconduct, which is one of the major causes of wrongful convictions. (Getty Images/Drew Angerer)

Sen. Tim Scott, a Republican from South Carolina, said the bill would have been strong even without addressing qualified immunity. “I've heard from and spoken to the families of the victims who have lost their lives at the hands of police. The areas where we agreed — banning chokeholds, limiting the transfer of military equipment, increased mental health resources, and more — would have brought justice to these families.”79

But Democrats disagreed. “We made it clear from the beginning of our negotiations that a bill must ensure true accountability, transparency and the policing standards necessary to bring an end to horrific incidents of violence Americans are routinely seeing — like the murder of George Floyd,” said the bill's co-sponsor Sen. Cory Booker, a Democrat from New Jersey. “After months of exhausting every possible pathway to a bipartisan deal, it remains out of reach right now.”80

After the collapse of talks in the Senate, President Biden said he would explore taking executive actions on police reform, but so far, he has not done so.

Lawsuits

In states that do not have laws that compensate victims of wrongful convictions, exonerated people seeking damages must file a federal or state civil rights lawsuit against the individuals and governments they hold responsible for their wrongful conviction. For example, they might sue a police officer who destroyed exculpatory evidence and the municipality that employed him or her. Many, but not all, of the states with compensation statutes also allow individuals to seek additional damages through civil rights lawsuits.

But civil rights lawsuits can take years and are difficult to win, say experts. In the meantime, wrongly convicted individuals released from prison without job prospects or skills may need money to live on. Increasingly, investors are betting on these lawsuits and loaning exonerated individuals up to $1 million in cash. If the case is lost, the exonerated person keeps the money, but if it is successful, the exoneree returns that money plus interest, which together sometimes can total as much as three times the original loan.

Some advocates complain that litigation financiers are taking too much of the winnings. New York attorney Nick Brustin, who has won three civil rights cases for exonerated individuals, told Bloomberg Law that such loans are “a necessary evil for a lot of people who've been through what our clients have been through.” However, he added, “I still think the profit margins are out of whack.”81

But firms that finance such lawsuits say it is a high-risk endeavor.

“We love to fund these cases,” said Daniel Digiamo, head of the finance company Baker Street Funding in New York. “We believe in the plaintiffs. We believe in the cases. And we believe in what the funding allows them to do.” Over the past several years, he says, the industry has grown “exponentially,” and the increasing competition has lowered costs of litigation loans for exonerated recipients.82

Go to top

Outlook

Reducing Wrongful Convictions

Changing the culture of law enforcement to eliminate misconduct may be one of the most important ways to reduce wrongful convictions, says Gross of The National Registry of Exonerations.

He says he is certain that many prosecutors and police follow proper procedures on revealing exculpatory evidence. “But making that universal … could take decades, because changes in culture are not easy.”

States will continue to address other factors that lead to wrongful convictions and that are more within their control, says Brown of the Innocence Project, such as how police conduct lineups, interrogate suspects and use prison informants. However, the near term presents a challenge, she says. “Murder rates are up, and that always makes criminal justice reform very difficult,” says Brown. “And it's an election year. That always makes it tougher to pass laws.”

Pasco of the Fraternal Order of Police, which strongly supports retaining qualified immunity for police officers in civil lawsuits, expects many states to follow Colorado's and New Mexico's lead and eliminate it for suits filed in state courts. “There's going to be a patchwork quilt of laws,” says Pasco. “If you liked the way the states administered COVID-19, you'll love the way they administer qualified immunity, because there'll be nowhere close to unanimity or even two laws exactly alike.”

On the other hand, Pasco does not expect Congress to muster support for any police reform bill that includes eliminating qualified immunity for civil lawsuits filed in federal court.

Chu of the Innocence Project hopes Congress will pass legislation to establish a national research strategy for forensic science to support the creation of new and improved standards for the field.

“I think the development of a unified forensic science research agenda is an urgent matter for the federal government. We've seen an explosion of technology applications … and they're being applied without sufficient reliability and validity. The application of facial recognition is a great example,” she says. “I am hopeful that policymakers and leaders will understand how important independent, transparent, valid and reliable forensic evidence and technology are to preventing wrongful convictions.”

Garvey, of the Major Cities Chiefs Association, agrees that standards are needed for the use of new digital evidence, such as facial recognition. However, whether a single national research agenda will be developed “is hard to say and may not provide the best guidance,” he says. The current structure may suffice.

Efforts by the Justice Department and the Department of Commerce, combined with private industry, academic partnerships and public laboratories, are creating a national framework for forensic science research, he adds.

Meanwhile, the innocence movement is here to stay, says Norris of George Mason University. “So long as we have a massive, complex apparatus as our criminal legal system — and one that is designed and administered by humans, with all of the flaws and biases we bring — there will be errors made,” he says, and innocence organizations will need to continue to provide legal case work.

Norris predicts that over the coming decade, the innocence movement will expand its advocacy for reform into broader areas, such as racial disparities in the criminal justice system, mass incarceration and the death penalty.

“The innocence movement can be a very strong leg of support for the broader fight for civil rights and social justice,” he says.

Go to top

Pro/Con

Do wrongful convictions add weight to the argument for abolishing the death penalty?

Pro Cassandra Stubbs Director, Capital Punishment Project, American Civil Liberties Union. Written for CQ Researcher, March 2022 The death penalty has an incurable innocence problem. In the 45 years since the Supreme Court reinstated the death penalty, we have been unable to prevent innocent people from being wrongfully convicted and sentenced to death. To date, 186 innocent people on death row have been exonerated, with that number climbing every year. Leading national innocence experts believe that at least 4 percent of all convictions are of innocent persons. This unshakeable innocence problem understandably troubles the public. Concerns about wrongful convictions are regularly among the top reasons for opposition to the death penalty and have contributed to the public's growing rejection of capital punishment. Despite the conclusive evidence of wrongful capital convictions, death penalty advocates contend that the fear of execution of an innocent person is overblown. This argument misses the mark. The Death Penalty Information Center has identified 20 men executed since 1983 who may have been innocent. Even more fundamentally, the argument ignores the moral cost of a system that gambles with a mistake that can never be undone. This gamble is even more offensive in light of the fact that there is no credible evidence to conclude that the death penalty deters crime. Supreme Court Justice Antonin Scalia famously argued that the threat of execution of an innocent person was overstated. He used the case of Henry McCollum as the poster child for the death penalty, pointing to the crime in that case — the rape and murder, allegedly by four men, of an 11-year-old girl — to argue that death by lethal injection administered by the government is not so bad. After hours of relentless police questioning, McCollum, who has an intellectual disability and was 19 at the time, falsely confessed to the crime, believing he would then be allowed to go home. Instead, he was sentenced to death. Decades later, DNA evidence exonerated and freed him. Like others disproportionately impacted by the criminal justice system, McCollum is Black. Study after study has shown the factors that contribute to losing the death penalty lottery include poverty, inept defense counsel and racial discrimination. These same risk factors contribute to the likelihood of wrongful conviction. The time is long past for America to abandon its racist, failed death penalty.

Con John Malcolm Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation. Written for CQ Researcher, March 2022 While some people on death row have been found to be innocent, there has been no definitive proof that an innocent person has been executed in the years since the Supreme Court reinstated the death penalty in 1976. In virtually every death penalty case litigated today, the defendant is represented by at least one “learned counsel” with extensive experience in capital cases. Defendants who are sentenced to death are afforded multiple opportunities to challenge their conviction and sentence. Once a death row inmate has exhausted his appeals, if not before, a governor will likely commute the sentence if there is any credible evidence the defendant may be innocent, or pardon him if that evidence is substantial. I commend the attorneys who work on behalf of those convicted of capital offenses. Wrongful convictions give people pause about the criminal justice system in general, but especially in capital cases, given the irreversible nature of the penalty. But even death penalty opponents acknowledge that the overwhelming majority of those convicted of capital offenses are guilty — and the crimes they committed often evince a brutality that is almost indescribable. It's impossible to fathom what the victim must have experienced in his or her final moments. Passing judgment on someone charged with any crime, including murder, is a human endeavor, and human beings are fallible. It is possible, however remote, that an innocent man might be executed. Yet, one must weigh that risk against the benefits of the death penalty: general deterrence; specific deterrence (the murderer will not be alive to kill again); and retribution (society's signal that certain crimes are so horrific the death penalty is the only appropriate punishment and the finality that a victim's family gets in knowing the offender has gotten the punishment he deserves and cannot hurt anyone else). We make decisions like that all the time, even when we know with 100 percent certainty that some innocent people will be victimized. For example, decisions to extend the operating hours for bars, raise the speed limit and legalize marijuana have resulted in the death of innocent people on our roadways, yet the benefits were deemed to outweigh those risks. While people should always be concerned about the risk of wrongful convictions, that is not reason enough to abolish the death penalty.

Go to top

Discussion Questions

Here are some issues to consider regarding wrongful convictions:

• More than 3,000 individuals have been exonerated since 1989 after collectively serving more than 26,700 years behind bars. Lawyers involved in the movement to free innocent prisoners call this an “incredibly serious problem,” but others say wrongful convictions are not a big issue. What do you think?

• Estimates of the percentage of wrongful convictions for violent crimes vary widely, ranging from less than 1 percent to as high as 15 percent. But experts say most wrongful convictions are never discovered. What should be done for the country to better understand the scope of this problem?

• Many wrongful convictions involve false confessions, often the result of police lying to suspects about the evidence they possess. A few states have moved to ban this tactic, particularly when questioning juveniles, but some police officers defend its use. Who do you think is right?

• Official misconduct is a contributing factor in more than half of wrongful conviction cases, but police officers and prosecutors are rarely punished for misconduct and often have immunity from civil lawsuits. Do you think this immunity is OK? If not, what should be done about it?

• Thirty-seven states and the District of Columbia compensate exonerated individuals, but in some states compensation is provided only if the person was exonerated due to DNA evidence. Should all states provide compensation? Should it be available in cases that are not based on DNA evidence?

• Innocence advocates say as many as 20 innocent prisoners may have been put to death in the United States since the Supreme Court reinstated the death penalty in 1976. Others say there has been no definitive proof that an innocent person has been executed. What do you think?

Go to top

Go to top

Short Features

Most States Provide Possibility of Compensation for Wrongful Conviction

Individuals who have been wrongfully convicted can lose years to prison, and, upon release, are often without jobs, housing, transportation or health insurance. Those who can demonstrate their innocence may seek compensation, either under state compensation statutes or through federal or state civil rights lawsuits, or both. But state statutes vary widely, and such lawsuits are difficult to win. CQ Researcher contributing writer Barbara Mantel spoke with Jeffrey Gutman, a professor of clinical law at the George Washington University Law School, who studies compensation for the exonerated. The conversation has been edited for clarity and length.

CQR: Why should exonerated people be compensated?

Gutman: When the criminal justice system makes a grievous mistake, society at large has a duty to try to repair it. Compensation, itself, does not fully repair the damage caused to the wrongfully convicted. But it is at least one step we can take to put the exonerated back into a position where they can live a dignified life following their release from custody.

CQR: Thirty-seven states and D.C. have compensation statutes. What do claimants in those jurisdictions have to show to win compensation?

Gutman: Almost without exception, the key thing they have to demonstrate, either by a preponderance of the evidence or by clear and convincing evidence, is their innocence. The one thing they do not have to prove is that a government or government officer, agent or employee caused the wrongful conviction. That is required in civil rights cases, but not under state statutes.

Jeffrey S. Guttman, professor of clinical law at George Washington University Law School (GW Law)

CQR: If I receive payment under a state's compensation statute, can I also file a civil rights lawsuit for additional money?

Gutman: In some states, if you receive money under the state compensation statute, you cannot pursue civil rights remedies. There are other states, though, where exonerees can seek compensation under both systems.

CQR: Is bringing a civil rights lawsuit the only way to get compensation in states without a compensation statute?

Gutman: That's almost completely correct. On rare occasions, there are people who have the political wherewithal or support to get a private bill passed through the state legislature. In a small number of states, there may be a general claim statute or other administrative process where people can make a claim against the state.

CQR: Who do exonerated individuals sue in civil rights lawsuits? Don't prosecutors, judges and witnesses have absolute immunity from civil lawsuits?

Gutman: They do. So, the targets are usually not going to be the prosecutor, the judges or the witnesses. They would be the municipality, the county or the police officers, who have qualified immunity. In some cases, a forensic scientist who testified wrongly might be sued. [Qualified immunity is a limited form of protection from civil liability.]

CQR: Which usually works best for exonerated individuals — state compensation statutes or civil rights lawsuits?

Gutman: Often, the state process takes less time to work its way through the system. Civil rights cases are long and often very complicated. On the other hand, in civil rights cases the amount of compensation provided per year of incarceration is higher, on average, than under state compensation statutes. But fewer people win civil rights awards.

CQR: Why is it difficult to win a civil rights lawsuit?

Gutman: You need to show that a state actor engaged in unconstitutional misconduct that denied the defendant, now the exonerated, the right to a fair trial. And there are cases in which that simply can't be shown. Other times, people have died, documents have been lost, time has passed, and that can make these cases more difficult to prove.

CQR: How varied are state compensation statutes?

Gutman: They are remarkably varied. In some states, an administrative entity makes the ultimate determination. In others, a court decides the outcome, or it's a combination of the two. There are a small number of states, New York for example, in which there is no cap on compensation. But in most states, there is a cap, either by year of incarceration, or in the overall total, or sometimes there's a cap on both. And some states will award, when appropriate, noncompensatory relief, such as free public university education or psychological counseling or medical insurance.

CQR: Which states have the most generous or fairest compensation statute?

Gutman: That's a hard one to answer. I prefer states that have no caps. At the same time, Texas is lauded for having a pretty good statute. The system works quite efficiently. The comptroller makes these decisions. And in addition to a lump-sum award, the individual gets an annual annuity payment each year for their lifetime. It's actually reasonably generous.

CQR: There are more than 3,000 exonerations since 1989 listed in the nonprofit National Registry of Exonerations. Your data show that 54 percent of individuals in the registry who served time behind bars never sought compensation under state statues. Why?

Gutman: Some statutes have real barriers. A few states, for example, require the cause of the exoneration to be DNA evidence. Only a significant minority of exonerees in the registry are DNA exonerees. In a couple of states, you need a gubernatorial pardon. And in a lot of situations, the individual was incarcerated for a very short period of time. They are not going to get very much, so they might not apply.

CQR: The vast majority of exonerated individuals in the registry were convicted of state crimes. Your study a few years ago showed only 118 of those who have been exonerated were convicted of federal crimes. Still, is there a federal compensation law for them?

Gutman: A federal compensation statute has been on the books since 1938. It basically provides for $50,000 per year of incarceration, or $100,000 if the person was on death row. Relatively few federal exonerees in the registry sought compensation under the statute, and even fewer got it. Just two.

CQR: Why is that?

Gutman: Something between 40 and 50 federal exonerees actually spent no time in jail and thus are not eligible. A fairly significant number of the rest spent very little time in jail, and it might not be worth their while to seek compensation. A lot of federal exonerees were convicted, wrongly, of white-collar crimes such as securities fraud, tax fraud, mortgage fraud. They often have extremely good lawyers. So they get out on bail, they appeal, and, ultimately, their convictions are overturned.

Go to top

Some States Reconsider Allowing Police to Lie to Suspects

In all 50 states, police officers are allowed to lie about evidence while they are interrogating suspects. The goal is to elicit a confession from someone the police believe is guilty.

Police can lie about the results of a polygraph test, pretend they have fingerprints or other forensic evidence that points to the suspect or say they have an eyewitness when they do not, says Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project in Washington, D.C.

“Really, the sky is the limit,” she says. “The problem is that we know this tactic can produce false confessions.” Such false confessions contributed to the wrongful convictions of 29 percent of the 375 exonerations obtained through DNA testing since 1989, according to the Innocence Project in New York.1

“False information … can substantially alter people's visual perceptions, beliefs, emotional states, memories and even certain physiological functions,” said Saul Kassin, a professor of psychology at John Jay College of Criminal Justice in New York, who has studied false confessions for 40 years. Innocent suspects become vulnerable to manipulation, he said, and may come to believe they are, in fact, guilty.2

Other suspects, who are innocent but are presented with false evidence, may confess because they fear losing at trial and facing a stiffer sentence, says Richard Leo, a professor of law and psychology at University of San Francisco School of Law and an expert on police interrogation.

The U.S. Supreme Court upheld the practice of lying during interrogations in 1969, and subsequent case law has upheld the tactic.3

The belief at the time was that “if the police lie to a suspect and invent evidence, the person not only is still capable of giving a voluntary confession, but they won't give a false or unreliable confession,” says Leo. “Of course, that belief got shattered with the formation of the Innocence Project in 1992 and the steady stream of DNA exonerations and proven false confessions.”

Leo says allowing deception in interrogations is harmful in other ways. It “makes police lazy” because they don't have to conduct as thorough an investigation to dig up real evidence to present to a suspect, he says. And it weakens norms against police deception in other situations, such as writing police reports, testifying in court or deciding how to handle evidence that may point to a suspect's innocence, Leo says.

Some states have begun to chip away at the practice. Last year, Illinois and Oregon prohibited the use of deception while interrogating juveniles. Law enforcement was divided on the issue. For instance, the Illinois Chiefs of Police and the Illinois State's Attorney Association supported the change in their state's law, but members of more than a dozen police departments opposed it.4

Harold Richardson, Vincent Thames, Terrill Swift and Michael Saunders (left to right) spent 15 years in prison after being convicted as teenagers of the 1994 rape and murder of a woman in Chicago. DNA evidence cleared them in 2011. A 2013 lawsuit filed on their behalf claims the Chicago police used deception, among other aggressive practices, to get a confession. (Getty Images/Chicago Tribune/Tribune News Service/Terrence Antonio James)

A bill introduced in New York last year that is pending in committee would ban lying during interrogations of both juveniles and adults. Wicklander-Zulawski & Associates in Chicago, one of the country's leading police training companies, supported the measure.5

“If investigators stopped the practice of lying about evidence, this would increase the credibility of the statements they do make and will allow a subject to make a more rational decision based on legitimate facts,” company president Dave Thompson said in a blog post.6

But Paul DiGiacomo, head of the New York Police Department's detectives’ union, opposed it. “What people often label as trickery is a solid tactic,” he said about the use of deception in interrogations. “There's nobody who wants to see the right person behind bars more than the dedicated detectives working the case.”7

Yet detectives in England, Germany and other Western countries do not find it necessary — and are not allowed — to lie to suspects, says Leo. In the United States, police are trained to use a “guilt-presumptive, accusatory, confrontational, confession-driven, confirmatory interrogation,” he says. In those other countries, they are trained in a technique called investigative interviewing, he says.

“The idea is, you should investigate much more thoroughly before you question a suspect, and you should never presume a suspect's guilt,” Leo says. “And when you question somebody, you should let them do most of the talking, especially in the beginning.”

The goal is not a confession but reliable information, Leo says. “This method requires more of the police,” he says. “And it doesn't involve deception.”

— Barbara Mantel

[1] “DNA Exonerations in the United States,” Innocence Project, https://tinyurl.com/2s42psdm.

[2] Saul Kassin, “It's Time for Police to Stop Lying to Suspects,” The New York Times, Jan. 29, 2021, https://tinyurl.com/2d9bd3ak.

[3] “Martin Rene FRAZIER, Petitioner, v. H. C. CUPP, Warden,” Cornell Law School Legal Information Institute, https://tinyurl.com/mv3v6f4k.

[4] “Illinois Becomes the First State to Ban Police From Lying to Juveniles During Interrogations,” Innocence Project, July 16, 2021, https://tinyurl.com/2p8pz3re; “Oregon Deception Bill is Signed into Law, Banning Police from Lying to Youth During Interrogations,” Innocence Project, June 16, 2021, https://tinyurl.com/5n8dchas; and Kate Elizabeth Quorum, “States Look to Ban Police From Lying During Interrogations,” Route Fifty, June 1, 2021, https://tinyurl.com/mr3n8x9w.

[5] Kassin, op. cit.

[6] Dave Thompson, “Conviction Review Unit Report: Key Takeaways,” Wicklander-Zulawski & Associates, Inc., Aug. 5, 2020, https://tinyurl.com/yc669rdh.

[7] Kassin, op. cit.; Rocco Parascandola, “Proposed N.Y. legislation would ban police tactic of lying to suspects to get a confession,” New York Daily News, March 8, 2021, https://tinyurl.com/yc8mu4bn.

Go to top

Bibliography

Books

Humphrey, John A., and Kaitlyn M. Clarke, Wrongful Conviction: From Prevention to the Reversal of Justice, Charles C. Thomas Publisher, Ltd., 2018. Two criminologists examine proposed and implemented legal remedies and policy changes to prevent wrongful convictions.

Medwed, Daniel S., ed., Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent, Cambridge University Press, 2017. In this book of essays, scholars discuss the impact of DNA testing on exonerations and its implications for future reforms.

Norris, Robert J., Exonerated: A History of the Innocence Movement, New York University Press, 2017. A George Mason University criminologist traces the history of the movement to free innocent prisoners and reform the criminal justice system.

Articles

Bella, Timothy, “Kevin Strickland exonerated after 43 years in one of the longest wrongful-conviction cases in U.S. history,” The Washington Post, Nov. 23, 2021, https://tinyurl.com/4e5fd5zj. A Missouri man becomes the longest-serving exoneree in the state's history when a judge sets aside his murder conviction after new evidence emerges.

Elinson, Zusha, and Dan Frosch, “New Mexico Makes It Easier to Sue Police,” The Wall Street Journal, April 7, 2021, https://tinyurl.com/n3nhecdm. New Mexico eliminates qualified immunity for government officials, including police officers, in civil lawsuits filed in state court.

Ferkenhoff, Eric, “Should police be allowed to lie to minors to get confessions? Some states are banning the practice,” Des Moines Register, Aug. 24, 2021, https://tinyurl.com/2p92h6mw. Illinois and Oregon ban police from lying to juveniles during interrogations.

Greve, Joan E., “Sweeping George Floyd police reform bill stalls as talks collapse,” The Guardian, Sept. 22, 2021, https://tinyurl.com/yc89pd6w. Senate discussions of a bill to reform the police collapse over the issue of eliminating qualified immunity in civil lawsuits against police officers.

Haavik, Emily, “How many innocent people are in U.S. prisons, and why can't we find them?” KARE11, May 31, 2021, https://tinyurl.com/4x7a6zeb. Most wrongful convictions go undetected, according to researchers.

Reports and Studies

“Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” Executive Office of the President's Council of Advisors on Science and Technology, September 2016, https://tinyurl.com/24k43s3h. A presidential advisory council castigates certain forensic practices and calls for more research and better standards.

“Strengthening Forensic Science in the United States: A Path Forward,” National Academy of Sciences, August 2009, https://tinyurl.com/3pyxd4fn. In a landmark report, the National Academies of Sciences call for overhauling forensic science.

Baumgartner, Frank R. , et al., “The Mayhem of Wrongful Liberty: Documenting the Crimes of True Perpetrators in Cases of Wrongful Incarceration,” Albany Law Review, Oct. 15, 2018, https://tinyurl.com/mtj2zp53. Researchers calculate the number of subsequent crimes committed by true perpetrators in North Carolina while the innocent remain behind bars.

Gross, Samuel R. , et al., “Government Misconduct and Convicting the Innocent,” The National Registry of Exonerations, Sept. 1, 2020, https://tinyurl.com/4csm4z94. Scholars examine the role of official misconduct — most of it committed by police and prosecutors — in the conviction of innocent people.

Gross, Samuel R. , et al., “Rate of false conviction of criminal defendants who are sentenced to death,” Proceedings of the National Academy of Sciences of the United States of America, May 20, 2014, https://tinyurl.com/5ddxtzu4. Researchers estimate the rate of wrongful convictions among individuals sentenced to death is 4.1 percent.

Zalman, Marvin, and Robert J. Norris, “Measuring Innocence: How to Think About the Rate of Wrongful Conviction,” New Criminal Law Review, Oct. 1, 2021, https://tinyurl.com/42tbnj37. Two criminologists review the decades-long attempt to measure the overall rate of wrongful convictions in the United States and conclude that it is unknowable.

Go to top

The Next Step

Forensic Science

Alex, Bridget, “Reforming Forensics: Why Academics Are Challenging the Science Behind U.S. Criminal Justice,” Discover Magazine, Oct. 15, 2021, https://tinyurl.com/mrxerjad. Statisticians sometimes use creative methods, including firing guns at a shooting range, to gather data for research on the reliability of forensic evidence.

Baer, Stephanie K., “We Asked Police Labs If They'd Use Sexual Assault Victims’ DNA To Implicate Them In Crimes. One Agency Wouldn't Rule It Out,” Buzzfeed News, Feb. 18, 2022, https://tinyurl.com/22d4xbay. Some law enforcement agencies appear willing to use sexual assault victims’ DNA to implicate them in other crimes, and the practice may be widespread.

McCrory, Charles, and Amy Yurkanin, “Teeth mark evidence sent an Alabama man to prison. Now experts say it's wrong,” AL.com, March 8, 2022, https://tinyurl.com/bp87arsk. Although a bite mark expert recanted his testimony in a decades-old murder case, a circuit court judge refused to grant the convicted man a new trial; his lawyers are vowing to appeal.

Legislation

Hallerman, Tamar, “Lawmakers seek to overhaul process for paying wrongfully convicted,” The Atlanta Journal-Constitution, March 2, 2022, https://tinyurl.com/4favbh83. A new bill introduced in the Georgia Legislature would set maximum and minimum payments that could be given to the wrongfully convicted, creating a more consistent process.

Montes, Daniel, “Pathway to address wrongful convictions proposed under new Assembly bill,” sfbayca.com, March 2, 2022, https://tinyurl.com/5bz7nwbv. A recently introduced California bill would establish a panel, selected by district attorneys, to review wrongful conviction claims.

Phillips, Kristine, and Johnny Magdaleno, “Bill setting bar for innocent people to receive compensation approved by House, heads to Senate,” IndyStar, Jan. 27, 2022, https://tinyurl.com/2p8vrk6s. The Indiana House passed a bill lowering the burden of proof required of those seeking compensation for wrongful convictions.

Litigation

Bischoff, Laura A., “Westerville woman sues Ohio for wrongful imprisonment after 18 years behind bars,” The Columbus Dispatch, Feb. 9, 2022, https://tinyurl.com/4h3cc8js. A woman is suing the state of Ohio after her 2003 murder conviction in connection with the death of an infant was thrown out when a medical expert recanted his testimony.

Ferkenhoff, Eric, “They're out of prison, but still fighting to prove their innocence: ‘I feel like I'm not free,’” Des Moines Register, March 7, 2022, https://tinyurl.com/y2w5nk9k. Many people who served their prison sentences but insist they were innocent continue to fight for exoneration in court.

Riley, Jason, “Second wrongful conviction lawsuit involving Matt Bevin pardons dismissed,” WDRB, Feb. 17, 2022, https://tinyurl.com/4vjzbp5p. A Kentucky man's lawsuit seeking to have his manslaughter conviction invalidated was thrown out because he had received a gubernatorial pardon that did not declare him innocent.

Qualified Immunity

Kindy, Kimberly, “Dozens of states have tried to end qualified immunity. Police officers and unions helped beat nearly every bill,” The Washington Post, Oct. 7, 2021, https://tinyurl.com/34dt2ayp. Police unions successfully lobbied to halt state measures, introduced after the 2020 murder of George Floyd by a Minneapolis police officer, that would eliminate qualified immunity for police officers.

Millhiser, Ian, “The Supreme Court could make it very easy for federal law enforcement to violate the Constitution,” Vox, March 1, 2022, https://tinyurl.com/2p9mxpyk. The U.S. Supreme Court will soon rule in a case that could give broad immunity to federal officers who violate constitutional rights.

Savage, Niara, “Appellate Court Rules Iowa Officers Must Face Lawsuit Over Traffic Stop Involving Handcuffing and Groping of Black Motorist: ‘They Only Saw One Thing,’” Yahoo News, Oct. 11, 2021, https://tinyurl.com/5n95pwv3. Two Des Moines police officers face a civil lawsuit alleging they wrongly handcuffed and humiliated a Black man after an appellate court ruled that they should not be protected by qualified immunity.

Go to top

Contacts

Center on Wrongful Convictions
Northwestern Pritzker School of Law, Northwestern University, 375 East Chicago Ave., Chicago, IL 60611
312-503-2391
law.northwestern.edu/legalclinic/wrongfulconvictions
A nonprofit legal clinic that identifies and rectifies wrongful convictions and other serious miscarriages of justice.

Centurion
1000 Herrontown Rd., Princeton, NJ 08540
609-921-0334
centurion.org
The oldest innocence organization in the United States; works to exonerate wrongly convicted individuals sentenced to life or death and will take cases without DNA evidence.

Consortium of Forensic Science Organizations
723 N. Weber St., Suite 103, Colorado Springs, CO 80903
thecfso.org
Lobbies on public policy and promotes increased government funding for public crime laboratories and medical examiner offices.

Death Penalty Information Center
1701 K St., N.W., Suite 205, Washington, DC 20006
202-289-2275
deathpenaltyinfo.org
A national nonprofit that analyzes and provides information on issues concerning capital punishment.

Fraternal Order of Police
701 Marriott Drive, Nashville, TN 37214
615-399-0900
fop.net
World's largest organization of law enforcement officers; lobbies for its members and offers training, benefits and educational opportunities.

Innocence Project
40 Worth St., Suite 701, New York, NY 10013
212-364-5340
innocenceproject.org
Exonerates the wrongly convicted through DNA testing and works to reform the criminal justice system.

National Academies of Sciences, Engineering and Medicine
500 Fifth St., N.W., Washington, DC 20001
202-334-2000
nationalacademies.org
Provide independent, evidenced-based advice to inform government policy, including a landmark report on forensic science.

National District Attorneys Association
1400 Crystal Drive, Suite 330, Arlington, VA 22202
703-549-9222
ndaa.org
Provides training, technical assistance and services to prosecutors around the country.

The National Registry of Exonerations
University of Michigan Law School, 625 South State St., Ann Arbor, Michigan 48109
949-824-3119
law.umich.edu/special/exoneration/Pages/about.aspx
Provides detailed information about every known exoneration in the United States since 1989.

The Organization of Scientific Area Committees for Forensic Science
National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899
301-975-2000
nist.gov/osac
Government entity that facilitates the development and promotes the use of technically sound standards in forensic science.

Go to top

Footnotes

[1] Timothy Bella, “Kevin Strickland exonerated after 43 years in one of the longest wrongful-conviction cases in U.S. history,” The Washington Post, Nov. 23, 2021, https://tinyurl.com/mr2ke3bt.

[2] Paul G. Cassell, “Overstating America's Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions,” Arizona Law Review, 2018, pp. 841-842, https://tinyurl.com/2s4kjexm.

[3] Marvin Zalman and Robert J. Norris, “Measuring Innocence: How to Think About the Rate of Wrongful Conviction,” New Criminal Law Review, Oct. 1, 2021, pp. 620–627, 630–632, https://tinyurl.com/tfabr29k.

[4] “Exonerations by year and type of crime,” The National Registry of Exonerations, https://tinyurl.com/mtf7y5uh; “Misdemeanors,” The National Registry of Exonerations, https://tinyurl.com/ms77zzx6.

[5] “DNA Exonerations in the United States,” Innocence Project, https://tinyurl.com/2s42psdm; “% Exonerations by Contributing Factor and Type of Crime,” The National Registry of Exonerations, https://tinyurl.com/3hv5ft45.

[6] Elizabeth F. Loftus, “Eyewitness testimony,” Applied Cognitive Psychology, March 12, 2019, https://tinyurl.com/yckk5d75.

[7] Samuel R. Gross et al., “Government Misconduct and Convicting the Innocent,” The National Registry of Exonerations, Sept. 1, 2020, pp. x, xii-xvi, https://tinyurl.com/4csm4z94.

[8] Jennifer P. Noble, “Not Above the Law: Thoughts on Prosecutorial Immunity and Public Trust,” Nevada Lawyer, July 2021, p. 18, https://tinyurl.com/2p85x9d3.

[9] Jeffrey Gutman, “States Must Rethink Wrongful Conviction Compensation Laws,” Law360, Sept. 12, 2021, https://tinyurl.com/3t5u3txx; “Compensating the Wrongly Convicted,” Innocence Project, https://tinyurl.com/42b4ssd4.

[10] Lindsey Bever and Timothy Bella, “Exonerated former inmate Kevin Strickland won't get compensation from Missouri, so donors raised $1 million,” The Washington Post, Nov. 26, 2021, https://tinyurl.com/b4ad6msy.

[11] “Editorial: Compensate the victim first, then ask who should pay for wrongful conviction,” St. Louis Post-Dispatch (Missouri), Feb. 17, 2022, https://tinyurl.com/mrrbcy3b.

[12] Frank R. Baumgartner et al., “The Mayhem of Wrongful Liberty: Documenting the Crimes of True Perpetrators in Cases of Wrongful Incarceration,” Albany Law Review, Oct. 15, 2018, pp. 1281–1282, https://tinyurl.com/mtj2zp53.

[13] “Executed But Possibly Innocent,” Death Penalty Information Center, https://tinyurl.com/t82whajc.

[14] Zalman and Norris, op. cit., pp. 603–604, 618–619.

[15] Samuel R. Gross et al., “Rate of false conviction of criminal defendants who are sentenced to death,” Proceedings of the National Academy of Sciences, May 20, 2014, p. 7230, https://tinyurl.com/22zszuy6.

[16] Ibid., p. 7231.

[17] Zalman and Norris, op. cit., pp. 601, 620–627.

[18] Paul G. Cassell, “Overstating America's Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions,” Arizona Law Review, 2018, pp. 817–818, p. 836, https://tinyurl.com/32zcf7m2.

[19] George C. Thomas III, “Where Have All the Innocents Gone?” Arizona Law Review, 2018, p. 865, https://tinyurl.com/2p9bhcyr.

[20] Ibid., p. 874.

[21] Ibid., pp. 882–883.

[22] “Jabbar Collins,” The National Registry of Exonerations, https://tinyurl.com/329d9hws.

[23] Frederic Block, “Let's Put an End to Prosecutorial Immunity,” The Marshall Project, March 13, 2018, https://tinyurl.com/bd3rs5ex.

[24] Gross et al., op. cit., p. x; Bidish Sarma, “Private: After 40 Years, Is It Time to Reconsider Absolute Immunity for Prosecutors?” American Constitution Society, July 19, 2016, https://tinyurl.com/cfx3m4s6.

[25] Ibid., p. ix.

[26] “Qualified immunity,” Cornell Law School Legal Information Institute, https://tinyurl.com/5n6cxjsr; Emma Tucker, “States tackling ‘qualified immunity’ for police as Congress squabbles over the issue,” CNN, April 23, 2021, https://tinyurl.com/4nv54tum.

[27] Gross et al., op. cit.

[28] Jared Wadley, “Ending qualified immunity means police officers held accountable for wrongdoings,” University of Michigan News, May 24, 2021, https://tinyurl.com/2p9akahu.

[29] Joanna C. Schwartz, “Police Indemnification,” New York University Law Review, June 2014, p. 890, https://tinyurl.com/2p8nkzs8.

[30] “Forensic Science: Problems and Solutions,” Innocence Project, https://tinyurl.com/yc29aevb.

[31] “Overturning Wrongful Convictions Involving Misapplied Forensics,” Innocence Project, https://tinyurl.com/2p8wurx2.

[32] “Forensic Science,” The U.S. Department of Justice, https://tinyurl.com/yc2h8mwb.

[33] Rachel Kaufman, “Forensic Science Controversies,” CQ Researcher, Feb. 10, 2017, https://tinyurl.com/5xjjw8zp.

[34] “Strengthening Forensic Science in the United States: A Path Forward,” National Academies Press, 2009, https://tinyurl.com/3pyxd4fn; “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” President's Council of Advisors on Science and Technology, September 2016, pp. x, 122, https://tinyurl.com/24k43s3h.

[35] “OSAC Registry,” Organization of Scientific Area Committees for Forensic Science, https://tinyurl.com/2p8n7h95.

[36] Geoffrey Stewart Morrison et al., “Vacuous standards — Subversion of the OSAC standards-development process,” Forensic Science International: Synergy, June 30, 2020, pp. 206–207, https://tinyurl.com/38bwtzwv.

[37] “S.4568,” congress.gov, pp. 4, 7, 9, https://tinyurl.com/2p8amr6v.

[38] “Strengthening Forensic Science in the United States: A Path Forward,” op. cit., p. 17.

[39] “S. 4568 (116th): Forensic Science Research and Standards Act of 2020,” govtrack, https://tinyurl.com/2p9apcvy.

[40] “Edwin Montifiore Borchard papers,” Archives at Yale, https://tinyurl.com/ypdk2a6x; Richard A. Leo, Police Interrogation and American Justice (2008), p. 238.

[41] Ibid.; Edwin Borchard, “State Indemnity for Errors of Criminal Justice,” Boston University Law Review, April 1941, p. 201, https://tinyurl.com/2p8d456f.

[42] James R. Acker and Catherine L. Bonventre, “Protecting the Innocent in New York: Moving Beyond Changing Only Their Names,” Albany Law Review, Sept. 23, 2010, p. 1254, https://tinyurl.com/2dnx9f26.

[43] Leo, op. cit., pp. 44–45, 59, 69; “Facts and Case Summary — Miranda v. Arizona,” United States Courts, https://tinyurl.com/2p89neh5.

[44] Leo, ibid.

[45] “Brady Rule,” Legal Information Institute at Cornell Law School, https://tinyurl.com/2p8bfwhf; Michael Meltsner, “Innocence before DNA,” in Wrongful Convictions and the DNA Revolution: Twenty-five Years of Freeing the Innocent (2017), pp. 24–25.

[46] Robert J. Norris, Exonerated: A History of the Innocence Movement (2017), p. 17; Robert J. Norris et al., “Thirty Years of Innocence: Wrongful Convictions and Exonerations in the United States, 1989–2018,” The Wrongful Conviction Law Review, May 12, 2020, pp. 6–7, https://tinyurl.com/3w2s8hsc.

[47] “Organizational Overview,” Centurion, https://tinyurl.com/2p93pk58; “Randall Dale Adams,” Center on Wrongful Convictions at Northwestern Pritzker School of Law, https://tinyurl.com/4mnxt5an.

[48] Norris et al., op. cit., pp. 7–8; Leo, op. cit., p. 238.

[49] Celia Henry Arnaud, “Thirty years of DNA forensics: How DNA has revolutionized criminal investigations,” Chemical & Engineering News, Sept. 18, 2017, https://tinyurl.com/3h8u93ur.

[50] Norris, op. cit., pp. 34–35.

[51] Norris et al., op. cit., p. 8; Norris, ibid., pp. 58–59, 62.

[52] Acker and Bonventre, op. cit., p. 1257.

[53] Ibid., p. 1258; Norris et al., op. cit., p. 8.

[54] “Our Start,” The Innocence Project, https://tinyurl.com/2eu6nsw9.

[55] Ibid.; “Access to Post-Conviction DNA Testing,” The Innocence Project, https://tinyurl.com/muwsv7ct.

[56] Rob Warden, “How and Why Illinois Abolished the Death Penalty,” Minnesota Journal of Law & Inequality, Summer 2012, https://tinyurl.com/234ckew3.

[57] Norris, op. cit., p. 75.

[58] Ibid., pp. 78–79.

[59] Ibid., pp. 89–90, 94–95.

[60] “Network Member Organization Locator and Directory,” The Innocence Network, https://tinyurl.com/4n9w8n8r.

[61] “About the Film,” PBS, https://tinyurl.com/kbyhypab; “Conviction and Exoneration,” PBS, https://tinyurl.com/yuw7hnb6.

[62] “DPIC Summary: The Innocence Protection Act of 2004,” Death Penalty Information Center, https://tinyurl.com/2p844rxm.

[63] “‘Badly Fragmented’ Forensic Science System Needs Overhaul; Evidence to Support Reliability of Many Techniques Is Lacking,” Press Release, National Academies of Sciences, Engineering and Medicine, Feb. 18, 2009, https://tinyurl.com/5bts8kar; Kaufman, op. cit.

[64] “Strengthening Forensic Science in the United States: A Path Forward,” op. cit., pp. 14–19.

[65] Norris et al., op. cit., p. 29; “About OSAC,” The Organization of Scientific Area Committees for Forensic Science, https://tinyurl.com/2p8e7kn6; and Morrison et al., op. cit.

[66] Gillian B. White, “Taxing the Wrongfully Convicted,” The Atlantic, Feb. 22, 2016, https://tinyurl.com/46b3m35n.

[67] “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” op. cit., pp. 1–20.

[68] Spencer S. Hsu, “Sessions orders Justice Dept. to end forensic science commission, suspend review policy,” The Washington Post, April 10, 2017, https://tinyurl.com/yc4x49cx.

[69] “Compensating the Wrongly Convicted,” op. cit.; “False Confessions & Recording Of Custodial Interrogations,” Innocence Project, https://tinyurl.com/bdedfdk8.

[70] “Conviction Integrity Units,” The National Registry of Exonerations, https://tinyurl.com/2ejjtp59.

[71] “SB22–023: Deceptive Tactics Juvenile Custodian Interrogation,” Colorado General Assembly, https://tinyurl.com/ypec6esd; “HB 109: Prohibiting Deception in Interrogations of Minors,” Florida House of Representatives, https://tinyurl.com/y6dwmrya.

[72] Maclen Stanley, “Stop Lying to Juveniles During Police Interrogations,” Psychology Today, Jan. 28, 2022, https://tinyurl.com/hcnaxt8f.

[73] Eric Ferkenhoff, “Should police be allowed to lie to minors to get confessions? Some states are banning the practice,” Des Moines Register, Aug. 24, 2021, https://tinyurl.com/2p92h6mw.

[74] “HB 1690,” Public Safety Committee, Office of Program Research, Washington State House of Representatives, https://tinyurl.com/3m5874k8; “WA HB1690 | 2021–2022 | Regular Session,” LegiScan, https://tinyurl.com/2p82vj99.

[75] “Senate Bill No. 16,” California Legislative Information, Oct. 1, 2021, https://tinyurl.com/yckr73c7.

[76] Kallie Cox and William Freivogel, “Police Misconduct Records Secret, Difficult to Access,” Pulitzer Center, Jan. 24, 2022, https://tinyurl.com/bnenmsc4; Claudia Lauer and Colleen Long, “Police disciplinary records are largely kept secret in US,” The Associated Press, June 12, 2020, https://tinyurl.com/2699ykes.

[77] George Joseph, “Judge Tosses Staten Island Man's Conviction Following NYPD Drug Planting Allegations,” Gothamist, Nov. 1, 2021, https://tinyurl.com/52hmd9nk.

[78] Joan E. Greve, “Sweeping George Floyd police reform bill stalls as talks collapse,” The Guardian, Sept. 22, 2021, https://tinyurl.com/ya7xnetn; “How George Floyd Died, and What Happened Next,” The New York Times, Nov. 1, 2021, https://tinyurl.com/juwnfcmh.

[79] Nicquel Terry Ellis, “‘I'm past angry’: Police shooting victims’ families, civil rights leaders condemn failed police reform talks,” CNN, Sept. 30, 2021, https://tinyurl.com/429zpz7p.

[80] Greve, op. cit.

[81] Roy Strom, “Out of Prison and Broke, Wrongly Convicted Sell Their Cases,” Bloomberg Law, Feb. 2, 2022, https://tinyurl.com/3w9scrjc.

[82] Ibid.

Go to top

About the Author

Barbara Mantel is a freelance writer in New York City. She has been a Kiplinger Fellow and has won several journalism awards, including the National Press Club's Best Consumer Journalism Award and the Front Page Award. She holds a B.A. in history and economics from the University of Virginia and an M.A. in economics from Northwestern University. Her most recent CQ Researcher report was on patient safety.

Go to top