The Criminal Justice Ethics Breakdown: Unforgivable, Incomprehensible, and Horrifying

"Yeah, that's bad, but can you believe those gas prices?"

There is no longer any way for the defenders of the criminal justice system, or indeed American democracy and its ideals, to deny that thousands, and perhaps tens of thousands, of Americans languish in prison for crimes they did not commit. This fact is so terrible in its implications for the nation, the system, the public and the legal profession that I feel incapable of grasping it all, still, though this has been slowly dawning on me for a long time. Right now, it is all I can manage to escape denial, for the deprivation of so many innocent people of their liberty is my responsibility, as well as yours, and that of everyone else. Even in the midst of serious policy debates over so much else that is vital to our future, how can anyone argue that this isn’t the highest priority of all?

Yesterday, the Washington Post revealed that

“Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled. Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

“In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts. As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects….

“…Overall, calls to defense lawyers indicate and records documented that prosecutors disclosed the reviews’ results to defendants in fewer than half of the 250-plus questioned cases.”

Combine this with well-documented studies and cases in other states that demonstrate a pattern of widespread prosecutorial misconduct that is rarely punished by state authorities, and the conclusions are inescapable, though solutions are elusive. English jurist William Blackstone believed that it was better to have ten guilty men go free than to imprison one innocent; Benjamin Franklin upped the ratio to 100 to 1. If America believes in the principle, what should its response be to the certainty that

  • Thousands of innocent people are currently imprisoned?
  • The procedures, scientific methods and in many cases, investigators and prosecutors who imprisoned them are unchanged, and thus,
  • Many more innocent people will be imprisoned, and even executed, in the future?

Our current response: “Why are gas prices so high? Why didn’t they charge George Zimmerman? How dare they say that about Ann Romney? How about those Dodgers?” This national disgrace is a series of one-day stories that Angelina Jolie can knock out of the news with a single announcement. As for the Justice Department, it is fighting state efforts to make voters identify themselves, blocking initiatives designed to make it clear that illegal immigrants are not welcome, sucking up to Al Sharpton and taking the Fifth Amendment, among other things. The Post reports that the 2004 DOJ task force that uncovered the bad evidence was diligent and exhaustive in its efforts (Until the time came to let the railroaded prisoners know that their protestations of innocence had been validated.) Now what? Why is it left to the Post to reveal the extent of the problem? Why isn’t the extent of this systemic betrayal of core American ideals considered a national crisis? Yes, the deficit, yes, entitlements, yes, health care, yes, Iran, and immigration, yes terrorism, yes, women’s rights…but this is right at the top of what America is here for, isn’t it? Life and liberty. How dare we pursue happiness while fellow citizens are being deprived of these daily?

I’m an ethicist, but seldom has saying something is wrong seemed so inadequate.

This has to matter to us more.

You can read the results of the Posts’s investigation here.

You can read how bad the problem is here.

You can read about how fallible forensic evidence is here (And do you think the entertainment media’s round-the-clock portray of brilliant, technologically infallible, F.B.I and C.S.I sleuths might play a part in false convictions by star-struck juries? I sure do…) here.

You can read about just one of the tragedies resulting from a false conviction, and the failure of the DOJ to release its evidence, here.

And you can read other Ethics Alarms posts about this issue here, here, here, here, here, here, and here.

Where will you find a leader with the power, focus, persuasiveness, courage and dedication to shake the public from its self-abortion and apathy and make the continuing imprisonment of innocent citizens the priority it must be in the supposed Land of the Free, and Home of the Brave?

I’m sorry. I have no answer.

 

 

24 thoughts on “The Criminal Justice Ethics Breakdown: Unforgivable, Incomprehensible, and Horrifying

  1. I believe it all comes down to prosecutors believing that their job is get convictions not see that justice is done. They are more interested in their careers and their conviction rate then seeing that people are treated fairly and justly.

    Too many times I’ve heard people complain that the criminals have all the rights and that the victims have none. What people do not seem to understand is that when we start stripping people of their rights, because we presume them to be guilty without having proven them guilty, we are destroying the American justice system and way of life.

    • Thus “Conviction Rate” is meaningless. They need a “Getting it right” rate, where an unjust conviction will be weighted heavily and destroy a career when it becomes known.

        • I think that a prosecutor who withholds evidence to insure a conviction should prosecuted.

          Not everyone agrees.

          Some people, without ethics, would simply lynch them.

          Other people, with even less ethics, would blow up their offices at the busiest time of day.

          If those entrusted to uphold the law systematically violate the law, then that would remove any deterrent against vigilantism.

  2. And… there was an excellent Frontline broadcast Tuesday evening called “The Real CSI”. It is available on the PBS website if you missed it. They managed to skewer most of what is claled “forensic science”, save DNA; and they brought some light into the cavern of certification of forensic experts.

    The real issue is this– now that there is some question about the validity of lots of things we took for certain, who will right it. The president of the national District Attorney association stood by the convictions… He said something like “the courts have been deciding cases on this stuff for decades, so it must be OK.” Once again it looks like we will see a battle over won-loss records instead of justice.

  3. Why didn’t they charge George Zimmerman?

    That is part of the problem. Too many people are willing to throw away procedural due process principles.

    And there is one other worry. The “thousands, and perhaps tens of thousands, of Americans languish in prison for crimes they did not commit” would be the perfect recruiting market for terrorist organizations like Al Qaeda and Hamas. Who else would have more motivation to want to destroy America, to set off bombs to kill those who did a great injustice to them?

      • The real question is why DID they.

        I do not know, although I suspect the answer will also answer your question of “[e]ven in the midst of serious policy debates over so much else that is vital to our future, how can anyone argue that this isn’t the highest priority of all?

        Do you have any comment about my observation that the “thousands, and perhaps tens of thousands, of Americans languish in prison for crimes they did not commit” would be the perfect recruiting market for terrorist organizations like Al Qaeda and Hamas?

        • Yes: I agree with you.

          I am constantly amazed at the placid attitude of most prisoners who gain their freedom when it is proven that they were innocent all along. Gratitude seems to trump anger, which is a good thing. But we are foolish to rely on that.

          • I am constantly amazed at the placid attitude of most prisoners who gain their freedom when it is proven that they were innocent all along. Gratitude seems to trump anger, which is a good thing. But we are foolish to rely on that.

            It only takes one pair of hands to build a bomb.

          • Well, it might be a bit more complicated than that. We rely not only on gratitude, but for wrongly convicted people that are freed with the records cleaned up, they have no restrictions to re-enter society. They have gratitude, plus a future (and sometimes a law suit). Convincing one of these people to throw away their American future might be an uphill battle for a terrorist organization – plus, risky since they have a spotlight on them.

            With regards to wrongly imprisoned who serve their time and are jettisoned – yes, they’d be much more likely to take action, but it would have to be independent action. A terrorist organization wants their plan, whatever it is, to succeed. They won’t throw their funds away on someone with a criminal record because it’s much more likely that the plan will be intercepted. They want people who are unsuspecting with clean records.

            • Of course you will be right most of the time, but as with the man in the Post story, who went in a 17 year old boy and came out a 45 year-old man with no education and a greatly reduced future, many freed victims of the system have good reason to be consumed with hate and anger. Or your wife has left you, your kids have grown up, and you are shoved into an alien world with all sorts of things you never experienced.

              • Of course you will be right most of the time, but as with the man in the Post story, who went in a 17 year old boy and came out a 45 year-old man with no education and a greatly reduced future, many freed victims of the system have good reason to be consumed with hate and anger. Or your wife has left you, your kids have grown up, and you are shoved into an alien world with all sorts of things you never experienced.

                As I stated before, it takes only one pair of hands to build a bomb.

                It would be unfortunate if the only way that this problem will get its much-needed attention is via a terrorist attack. For no other group of persons in the world will have as much grudge against America as they would.

  4. I generally agree, but I have heard that programs like CSI have actually led juries to demand a higher standard of proof, wanting forensic evidence when only circumstantial evidence is available.

    By the way, Bill talked about prosecutors withholding evidence to get a conviction. Is there no obligation on the prosecution to turn over all relevant, non-privileged information to the defence in the United States? If there isn’t, would imposing such an obligation help solve the problem?

      • The problem is that they don’t always and there is no penalty for failing to do so. Prosecutors need to be held accountable when they withhold exculpatory evidence and when they fabricate evidence. This is a fine point, however. The whole system is broken. If we really want to pretend we have a system that gives people a fair trial we need to fix the entire adversarial system. As it is now, the justice system has the police force, the prosecutor’s office, and the crime lab against a single defense attorney. This hardly seems fair. Putting all evidence gathering, analysis, and interpretation on one side really slants the odds, doesn’t it?

        What have we learned from Fred Zain, the FBI crime lab scandal, the Oklahoma Crime lab, the Houston Crime lab, and countless others? We have learned that the crime lab cannot work with or under a prosecutor or the police force. Evidence cannot be entrusted to the sole care of the prosecution and police force. What have we learned from the Innocence Project? Eyewitness ID is of very limited value as evidence, people will make up stories to convict people, and that the police and prosecutors aren’t the greatest judges of guilt or innocence.

        What we need is a new system. We need a system where things are a little more impartial and balanced. We need a system where evidence is stored, handled, and analyzed by a third party. Prosecution and defense need to have equal access to evidence and lab facilities. There need to be clearer standards about what constitutes sufficient evidence for a conviction. Eyewitness ID needs to be greatly devalued. Judges and attorneys need to be more educated about bias and interpreting evidence. Most of all, we need a miracle to get any type of change out of a legal system that seems to be more for the benefit of attorneys than the public.

      • That’s good. I would wonder whether it would ever lead to problems if it is the prosecution that must decide whether evidence is exculpatory. Do you think the problems you describe would be solved if prosecutors complied with their duties under Brady?

        • If prosecutors were perfect, we might not even need trials. The challenge is designing a system that has a lot of fault-tolerance built in. Right now, there is little to none. When you can admit fabricated evidence in the Oklahoma City bombing trial even though it had previously been established that it was fabricated, you have a serious problem with your system.

  5. “Consider this: despite the fact that violent crime in America has been on the decline, the nation’s incarceration rate has tripled since 1980. Approximately 13 million people are introduced to American jails in any given year. Incredibly, more than six million people are under “correctional supervision” in America, meaning that one in fifty Americans are working their way through the prison system, either as inmates, or while on parole or probation. According to the Federal Bureau of Prisons, the majority of those being held in federal prisons are convicted of drug offenses—namely, marijuana. Presently, one out of every 100 Americans is serving time behind bars.”
    “Little wonder, then, that public prisons are overcrowded. Yet while providing security, housing, food, medical care, etc., for six million Americans is a hardship for cash-strapped states, to profit-hungry corporations such as Corrections Corp of America (CCA) and GEO Group, the leaders in the partnership corrections industry, it’s a $70 billion gold mine. Thus, with an eye toward increasing its bottom line, CCA has floated a proposal to prison officials in 48 states offering to buy and manage public prisons at a substantial cost savings to the states. In exchange, and here’s the kicker, the prisons would have to contain at least 1,000 beds and states would have agree to maintain a 90% occupancy rate in the privately run prisons for at least 20 years.”

    • 1. It seems unremarkable to me that crime would fall as the number of criminals in jails increases. Less criminals on the street, less crime.
      2. The number or proportion of people in jail doesn’t trouble me at all, as long as they were guilty. For every innocent prisoner wrongly jailed, there is presumably one guilty criminal free, at least for a while. The wrongly convicted problem is distinct from the the prison over-crowding problem.

  6. “Mere factual innocence is no reason not to carry out a death sentence properly reached”

    That’s a summary, not an exact quote.

    The exact words are:

    “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual
    innocence” is constitutionally cognizable.”

    “There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”

    – Current Supreme Court Justice Antonin Scala

    Then there’s cases like this one:
    http://moorbey.wordpress.com/2012/04/15/marissa-alexander-stood-her-ground-no-one-was-injured-or-murdered-she-faces-25-years-in-prison/

    She was found guilty, with a mandatory minimum sentence of 20 years. The DA is complaining bitterly – she was supposed to be scared enough by the overcharging to take a plea bargain, not rely on innocence as a defence. This makes the DA look bad.

    And this one:
    http://www.feministe.us/blog/archives/2012/02/09/this-is-what-happened-to-cece/

    • Scalia is right. Actual innocence, like actual guilt, is subordinate to due process as far as the courts and the system are concerned. There are ways to get a new trial, and the executive has pardon power. Someone has to do the right thing in such cases, but there’s no established right to demand it. And no one should have to demand it. The system determines guilt under the Constitution, and it is dangerous to vary from that….that’s how we get George Zimmerman being railroaded without sufficient evidence to convict. That’s why there is no double jeopardy, That is why SCOTUS has made the due process requirements rigorous.

      None of which is really related to the post, because in these cases there was no fair trial. Evidence was misrepresented to the jury.

      • Does “due process” involve a “fair trial”, or just a trial? It seems the latter.

        I’ve seen far too many cases of “due process” where the verdict was written and recorded in advance, then the evidence heard.

        The forms were observed; the defendant got to have their say in front of a judge; there is nothing in “due process” that says a pre-determined verdict can’t be reached as long as the forms are observed.

        This was very common in Florida Mortgage cases, where “in order to clear the backlog”, such measures were deemed necessary in order for the court system to function.

        Example:
        http://www.scribd.com/webber3292/d/38207133-Motion-to-DQ-Judge

        On August 19, 2010 at approximately 8:15 a.m. (a little more than an hour beforethe scheduled summary judgment hearing), Philip J. Healy, Esq., an associate with Stopa LawFirm, went to the courthouse in an attempt to look at the court file in this case. Upon doing so,he was shocked to see, in the Court file, conformed copies of a Final Judgment of foreclosure.Mr. Healy photographed (with his cellphone) the first and last pages of this document, which reflect that the Judge had entered a Final Judgment of foreclosure on August 19, 2010.
        ANALYSIS
        1
        SeeExhibit “A” hereto. Significantly, these conformed copies were entered at least an hour beforethe hearing on the Motion for Summary Judgment was even scheduled to begin.

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