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It’s So Bad, We Can’t Know How Bad

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My brain crush on Adam Liptak had been waning for a few weeks. Until yesterday.

Liptak’s Sidebar column this week takes on the problem of the wrongly incarcerated. More specifically, he addresses our societal failure to really do anything about it, and Justice Scalia’s endorsement of our societal ambivalence (he calls it a “truism not a revelation” that we have some false convictions).

Scalia has for some time now downplayed the enormity of the problem of false convictions. At a recent speech, he said that our false conviction rate was a mere .027% — something we can sleep easy about. But, as Liptak points out, something’s fishy with the Scalia arithmetic:

[Scalia] had, citing the methodology of an Oregon prosecutor, divided an estimate of the number of exonerated prisoners, almost all of them in murder and rape cases, by the total of all felony convictions.

“By this logic,” Samuel R. Gross, a law professor at the University of Michigan, wrote in a response to be published in this year’s Annual Review of Law and Social Science, “we could estimate the proportion of baseball players who’ve used steroids by dividing the number of major league players who’ve been caught by the total of all baseball players at all levels: major league, minor league, semipro, college and Little League — and maybe throwing in football and basketball players as well.”

See the problem? Scalia’s math assumes that the 250 or so people who have been exonerated by DNA evidence are the only people out of the millions of people in American prisons who were wrongly convicted. Which is laughable at best and downright deceitful at worst.

In truth, the problem of wrongful convictions is real, and serious. It’s particularly problematic outside the context of rape, where DNA is usually not available. Even in rape cases, DNA is often not available (either because the convictions are too old, there has been misconduct, or the state was just plain old careless with the evidence). As Professor Gross has suggested, the real false conviction rate may be closer to around 5%. Which is no small number. In fact, it’s a big number: there are now a little over 2.3 million people in American prisons. 5% of that is about 116,000.

That’s 116,000 people sitting in jail who shouldn’t be there. Hey, Justice Scalia, can we rethink our truism now?

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