Another Side of the Story
Another Side of the Story
Constitutional Amendment Question No. 3
Innocent get convicted more
often than commonly thoughtOn Nov. 5, Hawaii voters will be offered a chance to change our criminal justice system. The Honolulu prosecutor and the Honolulu Police Department support a constitutional amendment to "streamline" the system of charging citizens with crimes. The amendment would eliminate the legal requirement that people accused of crimes be brought to trial through a grand jury or preliminary hearing that determines "probable cause" for a trial. Instead, a judge would simply review documents supporting the charge gathered by law enforcement and determine if he or she feels there is probable cause.
We oppose this change and urge a "no" vote on ballot question No. 3. While some argue that this streamlined system, called information charging, would be less burdensome for victims, police officers and others who must now appear to testify before a judge or a jury, it is also clear the proposed changes will make it easier to charge people with crimes. This is not necessarily a virtue.
The first obligation of a criminal justice system is to make accurate decisions about who is innocent and who is guilty. American criminal justice fails at this function far more often than most people believe. Consider some of the evidence.
The Innocence Project is a legal clinic that handles cases involving the post-conviction testing of DNA evidence. Investigations by the project have exonerated 110 men and women, most of whom spent years or decades in prison for crimes they did not commit. They all were actually innocent.
DNA tests also are used before trial. According to a study by the U.S. Department of Justice, of the first 18,000 test results at the FBI and other crime laboratories, more than 5,000 prime suspects (28 percent) were excluded before their cases were tried. Most were innocent. For many in this legion of innocent suspects, only the DNA tests interrupted their forced march from wrongly accused to wrongly convicted.
How many other innocent people are imprisoned for charges that do not involve any biological evidence?
Research suggests that there are thousands -- far more than even the most jaded jurist ever envisioned.
Ronald Huff, a professor at the University of California and past president of the American Society of Criminology, estimates that there are at least 10,000 wrongful felony convictions in America each year. On the average, that's four miscarriages per week per state.
The gravest mistakes occur in capital cases. The Death Penalty Information Center reports that 6,000 death sentences were imposed in America between 1973 and 1997. Of those, 76 have been reversed so far. Most of these men and women were exonerated and released. Thus, about one of every 80 people sentenced to death in the United States since 1973 has was innocent. Does anyone think that this is an acceptable error rate?
Since Illinois re-established the death penalty in 1977, 12 people have been executed and 13 have been exonerated and released from death row. To his credit, the governor of Illinois has declared a moratorium on executions until the system is fixed. The governor of Maryland has done likewise.
The evidence is clear and abundant: American criminal justice makes frequent mistakes about guilt and innocence. What is worse, our criminal justice officials routinely refuse to acknowledge that errors occur.
Some time ago, one of us invited a Hawaii prosecutor to speak to a class of university students. In the course of answering a student's question, the prosecutor said that "no one is ever wrongly convicted in Hawaii" because the system has "too many checks." This claim is commonly heard from prosecutors throughout the United States. It is not supported by the available evidence and points to the need for more, not less, oversight of the prosecutorial function.
We can do several things better if we are serious about minimizing miscarriages of justice:
First, we can acknowledge mistakes publicly. Denial serves no worthwhile purpose. Worst of all, it deflects attention away from the problems that cause justice to miscarry.
Second, when justice does miscarry, we can search more diligently for the causes of what went wrong. This is done after planes crash, and our response to jurisprudential disasters should be no less purposeful.
Third, our criminal justice officials should undertake a few easy changes that will help prevent miscarriages. The following proposals address three major causes of criminal justice failure: Mistaken identifications, false confessions and police and prosecutor misconduct.
>> In order to reduce mistaken identifications (the leading cause of wrongful conviction), police should conduct "line-ups" sequentially, so that witnesses see only one "suspect" at a time. Research shows that when witnesses view several people at once, they make relative judgments and pick out whoever looks most like the person they remember from the crime scene. Sequential line-ups result in fewer mistaken identifications but no fewer accurate ones.
>> In order to identify false confessions, police should record all interrogations. This is done in other states. It may seem hard to believe, but many people falsely confess. To pick one case among many, Eddie Joe Lloyd recently was released (because of a DNA test) after spending 17 years in a Michigan prison for a murder he did not commit. At the time he confessed, Lloyd was mentally ill and easily manipulated by the police. At the time he was sentenced, the judge lamented the unavailability of capital punishment in Michigan because, in his view, Lloyd deserved to die.
>> In order to prevent police and prosecutor misconduct, judges should speak more forthrightly about it when it occurs. Research shows that the suppression of exculpatory evidence by police and prosecutors is a major cause of miscarriages of justice, yet judges handle such misconduct more gingerly than any other transgression they encounter. In court opinions, police and prosecutors are rarely cited by name for their misconduct. Judges must become more willing to speak the uncomfortable truth about criminal justice mistakes. That means holding officials accountable for their transgressions, too.
Finally, in order to prevent miscarriages of justice, there is one way in which criminal justice in Hawaii should remain as it is. Ballot question No. 3 must be rejected. As a former U.S. attorney general once observed, "the prosecutor has more control over life, liberty and reputation than any other person in America." The prosecutor's discretion is already tremendous; it should be checked, not expanded. If you want to prevent more miscarriages of justice, please vote "No" on question No. 3.
David T. Johnson is an associate professor of sociology and Meda Chesney-Lind is professor of women's studies at the University of Hawaii.
>> Peter Carlisle, a proponant of ballot question No. 3 give his side on Sunday's Commentary page.
