In 2009 Governor Rick Perry proudly presided over the first posthumous pardon ceremony in Texas history. “Ruby,” he told Cole’s mother, “it means the world to me to be here today to look you in the eye and tell you that your son is pardoned.” A smiling Perry appeared to believe that the state’s criminal justice system had been vindicated along with Cole and that all was right with the world. Cole’s mother wasn’t so sure.
Reporter Beth Schwartzapfel, writing about the case for the online December 12, 2011, edition of Mother Jones, said, “The tale of Tim Cole and Jerry Johnson, which I investigated for more than a year, reveals a system in which an innocent man, once convicted, has virtually no chance of redemption—even with the guilty man fighting for it.” When convicts say something that conflicts with the official record, authorities generally dismiss it, saying you can’t accept a convict’s word as truth. But when convicts are testifying for the prosecution, they should most certainly be believed, especially if they reference a private, jailhouse confession that can’t be confirmed.
Although he didn’t invent the idea, British jurist William Blackstone is remembered for declaring that protecting one innocent person from wrongful conviction is more important than jailing ten criminals. That credo, in one form or another, dates back thousands of years and is the foundation of the legal requirement that defendants must be proved guilty beyond reasonable doubt.
But what’s now generally known as the Blackstone ratio has been under attack in contemporary America, sometimes by stealth and sometimes with brutal frankness, as when syndicated columnist Jonah Goldberg pronounced it a mindless cliché. “If you want what’s right for somebody else simply because you’re afraid that you’ll be next,” Goldberg wrote, “then your motivations are selfish.”2 No matter how many times I read that sentence, it still doesn’t make sense. Although Goldberg would surely disagree, his argument stands on the shoulders of Feliks Dzerzhinsky, founder of the Soviet secret police, who famously professed, “Better to execute ten innocent men than to leave one guilty man alive.”3 Dzerzhinsky’s argument was straightforward and unadorned: he was insanely fixated on punishing the guilty no matter what the costs—and not afraid to show it. Madness is the only possible outcome for any system that values punishment over decency.
In his column, Goldberg, a leading conservative thinker, blithely made a case for rounding up the usual suspects and keeping them rounded up. “Better ten guilty men go free than one innocent be punished,” he contended, is no more than a silly slogan. “Why is it better?” he asked, as though he’d stumped us. He closed off the debate with a time-tested technique—fear: “Maybe we will all accept it as the price of liberty when your mother is subsequently raped or your son is shot because, hey, better the rapists and murderers go free than the unlucky go to jail. But, it seems to me, there’s an argument to be had here.”4
University of Michigan law professor Samuel L. Gross has argued that anyone trying to determine a proper innocence ratio against the percentage of rightful convictions is starting with a false premise. “No rate of preventable errors that destroy people’s lives and destroy the lives of those close to them is acceptable,” he concluded.5
Perhaps if Goldberg were doing time for a crime he didn’t commit, he’d serve his sentence without a whimper for the greater good and to protect mothers everywhere from rape, but I expect he’d opt instead to yell his head off and lodge “selfish” complaints. In any case, Goldberg performed a service by audaciously spelling out what so many of his political and philosophical brethren believe in their heart of hearts: sending large numbers of suspects to prison, even if some are innocent, realistically means taking lawbreakers off the streets. After all, some of them are no doubt guilty of something, either offenses they’ve already committed or others they might perpetrate somewhere down the line. So isn’t it prudent to lock them up?
Tossing people in jail who don’t belong there, however, can eventually transform a free but excessively punitive society into a totalitarian state, which by its very nature is a crime. Barry Scheck, a founder of the Innocence Project, points out that punishing the wrong people is not only morally reprehensible but also counterproductive: “Every time an innocent person is convicted, it means there are more guilty people out there who are still committing crimes.”6
The first Innocence Project was founded in 1992 at the Cardozo School of Law of Yeshiva University in New York City. Since then other Innocence Projects, all linked to law schools, have sprung up around the country. Students, directed by professors, do most of the heavy lifting. In most cases they focus on reversing convictions through the use of DNA testing. They also conduct research on false convictions in an effort to prevent new ones.
One state, North Carolina, has created its own independent commission to review innocence claims. In addition, some prosecutors’ offices have created conviction-integrity units. The one set up in 2010 by Manhattan district attorney Cy Vance Jr., for example, has an advisory panel that includes Innocence Project codirector Barry Scheck. Said Vance, “As prosecutors, it is our duty to bring our best efforts to bear in every case to ensure that only the guilty are convicted.”7
A study issued in 2004 concluded that thousands of innocent people are in prison at any one time. The study, conducted at the University of Michigan, traced cases that dated back to 1989, the year of the first DNA exoneration. Researchers supervised by Professor Gross found 328 exonerations over the fifteen years, 145 of them involving DNA evidence. They found that the leading causes of wrongful convictions for murder were false confessions and perjury by codefendants, informants, police officers, or forensic scientists.8
The authors of the Michigan study speculated that murder exonerations outnumber pardons for other offenses because murder cases attract more attention, especially when a death sentence is imposed. Death row inmates represent a quarter of 1 percent of the prison population but make up 22 percent of those exonerated, which, the authors concluded, suggests that innocent people are often convicted in run-of-the-mill cases. “If we reviewed prison sentences with the same level of care that we devote to death sentences, there would have been over 28,500 non-death-row exonerations in the past 15 years rather than the 255 that have in fact occurred,” the study concluded.9 But it’s unlikely that all innocent defendants, even if their cases were seriously reexamined, could jump through every hoop necessary to win exoneration. The average time from conviction to exoneration is about thirteen years, so only those sentenced to lengthy sentences would even bother to try. That said, we should never forget that although two, three, or four years in prison may not look like much stacked against decades-long sentences, time is measured differently inside the walls.
Meanwhile, the number of exonerations increases as DNA appeals wind through the courts. Given the size and complexity of the justice system and all its various federal, state, and local components, deducing the number of wrongful convictions is a guess at best. University of Virginia law professor Brandon Garrett noted that we can’t say with any precision how many people are convicted, much less wrongfully convicted, in the United States. “We don’t even have a denominator,” he said. “But the wrongful convictions we do know about suggest that there’s a big problem.”10