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Article Excerpt
The U.S. experience with the problem of wrongful conviction extends throughout the nation's history, as is true for other nations, such as Canada, and predates the formation of the United States as an independent nation. As residents of a British possession, American colonists were often subjected to secret accusations without the right to question their accusers and were generally denied the types of due process rights that U.S. citizens have taken for granted since the development of the Constitution and the Bill of Rights. And, while status differences were generally less important in the colonies than in England, the American colonies were certainly not egalitarian, and some regions (especially Virginia) were quite conscious of distinctions in socio-economic status (Whitman 2003). This fact, along with the inferior social status assigned to blacks, suggests that class and race discrimination influenced decisions regarding who was guilty and how they should be punished. Sadly, such discrimination continues to occur today, despite important social and legal reforms, and is evident in many cases of wrongful conviction in the United States.
This article is not the place to dwell on the colonial roots of wrongful conviction; rather, its aim is to discuss the contemporary American experience. As I have noted elsewhere (Huff 2003), scholars, jurists, journalists, and activists have documented and analysed cases of wrongful conviction since Borchard's (1932) pioneering work more than seven decades ago. For more than half a century, the documentation and analyses focused almost exclusively on individual cases, but beginning in the 1990s, and continuing today, a decided shift has occurred in scholarly research, as well as in media attention and public opinion. The public policy importance of wrongful conviction has recently grown in the United States. Citizens' and policy makers' increasing awareness of this issue has been closely linked to the highly publicized post-conviction DNA exonerations of individuals who served long prison sentences and to the increasing abolition of, or moratoria on, the use of the death penalty in the United States. Recent studies involving the possibility of error in capital cases have brought even further attention--and a sense of urgency--to this issue. In their seminal study, Radelet, Bedau, and Putnam (1992) argued that at least 23 innocent persons have already been executed in the United States. In a more recent and highly publicized study examining thousands of capital sentences over a 23-year period (1973-1995), Liebman, Fagan, West, and Lloyd (2000; see also Liebman 2002) found serious, reversible errors in almost 70% of cases. Although the great majority of those who are wrongly convicted in the United States do not face the death penalty, or even life in prison, such errors often result in many years of unwarranted punishment and serious damage to the lives of the wrongly convicted, while the actual offenders in those cases are free to commit additional crimes, thus compromising public safety.
What is the frequency of wrongful conviction in the United States?
No systematic data on wrongful conviction are kept in the United States, and certainly it is not possible at this point to accurately estimate or compare the magnitude or frequency of this problem across jurisdictions. In fact, estimating the extent to which wrongful conviction occurs is a much greater challenge than estimating the true incidence rate of crime, since victimization surveys (including cross-national surveys) have greatly facilitated the latter task, allowing us to extrapolate between official crime reports and victimization data. No similar credible methodology has been developed to estimate the true extent of wrongful conviction, since many cases go undiscovered and since analogous surveys of prisoners, for example, would lack public credibility.
A colleague and I conducted a survey, utilizing an intentionally conservative sample dominated by prosecutors, judges, and law enforcement officials and a national sample of attorneys general (Huff, Rattner, and Sagarin 1996). The total sample size was 353, and we received 229 responses (a 65% response rate). We asked our conservative sample to estimate what proportion of all felony convictions resulted in wrongful convictions. Based on the responses we received, we then estimated an error rate of 0.5%, and we decided to see what...
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