There are probably more innocent men and women in prison in the United States now than there were people in prison here total — innocent and guilty — 30 years ago, or than there are total people in prison (proportionately or as an absolute number) in most nations on earth.
I don’t mean that people are locked up for actions that shouldn’t be considered crimes, although they are. I don’t mean that people are policed and indicted and prosecuted by a racist system that makes some people far more likely to end up in prison than other people guilty of the same actions, although that is true, just as it’s also true that the justice system works better for the wealthy than for the poor. I am referring rather to men (it’s mostly men) who have been wrongly convicted of crimes they simply did not commit. I’m not even counting Guantanamo or Bagram or immigrants’ prisons. I’m talking about the prisons just up the road, full of people from just down the road.
I don’t know whether wrongful convictions have increased as a percentage of convictions. What has indisputably increased is the number of convictions and the lengths of sentences. The prison population has skyrocketed. It’s multiplied several fold. And it’s done so during a political climate that has rewarded legislators, judges, prosecutors, and police for locking people up — and not for preventing the conviction of innocents. This growth does not correlate in any way with an underlying growth in crime.
At the same time, evidence has emerged of a pattern of wrongful convictions. This emerging evidence is largely the result of prosecutions during the 1980s, primarily for rape but also for murder, before DNA testing had come into its own, but when evidence (including semen and blood) was sometimes preserved. Other factors have contributed: messy murderers, rapists who didn’t use condoms, advances in DNA science that helps to convict the guilty as well as to free the innocent, avenues for appeal that were in some ways wider before the 1996 Antiterrorism and Effective Death Penalty Act, and the heroic work of a relative handful of people.
An examination of the plea bargains and trials that put people behind bars ought to make clear to anyone that many of those convicted are innocent. But DNA exonerations have opened a lot of eyes to that fact. The trouble is that most convicts do not have anything that can be tested for DNA to prove their guilt or innocence. Here are 1,138 documented exonerations out of that tiny fraction of the overall prison population for which there was evidence to test. One study found that 6% of these prisoners are innocent. If you could extrapolate that to the whole population you’d be talking about 136,000 innocent people in U.S. prisons today. In the 1990s, a federal inquiry found that DNA testing, then new, was clearing 25% of primary suspects. You do the math.
Of course you can’t simply do the math, because wrongful convictions could be higher or lower for the available sample than for all prisoners. What we can be sure of is that we are talking about a large number of people whose lives (and the lives of their loved ones) have been ruined — not to mention the lives of additional victims of actual criminals left free.
One way to be fairly sure that the rate of wrongful conviction carries over, at least very roughly, to a variety of criminal prosecutions is to examine how those convictions came about. Brandon Garrett’s Convicting the Innocent: Where Criminal Prosecutions Go Wrong examines the prosecutions of the first 250 people exonerated by DNA testing. Garrett finds broad systemic problems that could be remedied but largely have not been.