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By Jill K. Sanders, Esq.

Blackstone’s ratio is taught in many criminal law classes. Written by English jurist William Blackstone, the idea is that it is better that ten guilty persons go free than that one innocent person be convicted. But how many really believe in that idea?

A recent study found that many Americans don’t. In surveys of more than 12,000 people, more than 60 percent consider false acquittals and false convictions to be equally bad outcomes. Moreover, a sizeable minority viewed false acquittals as worse than wrongful convictions.

Would you want those folks on your jury if you were charged with a crime you didn’t commit? In the US, there are a number of people who have been exonerated decades after crimes for which they were wrongfully convicted. Too many of those have been on death row. Below, we talk about the incidence of actually innocent folks being convicted in the US and New York.

Actually Innocent or Falsely Convicted?

When it comes to wrongful convictions, there are two categories. One is that the person’s case involved procedural errors that violated their rights in some way. Alternatively, a person is factually innocent of the offense for which they charged or convicted.

Since 1989, 3,323 folks have had their convictions vacated and are listed on the National Registry of Exonerations. For these persons, they were exonerated – meaning they were determined to be actually innocent. Some estimate that of those in a US jail or prison, 1% are falsely convicted; others estimate it may be as much as 4 to 6%.

As discussed in a recent blog, many folks who are actually innocent plead guilty to crimes they didn’t commit. This is another form of wrongful conviction. In the US, 26% of those exonerated since 1989 pleaded guilty, with 23 of those cases being in New York.

Factors in Wrongful Convictions

According to the Equal Justice Initiative, the rate of exonerations continues to rise. There are several contributing factors, such as reliance on mistaken eyewitnesses, ineffective assistance of counsel, and the indigent defense crisis. Another factor is the use of “junk science.” In many courts, forensic techniques that aren’t scientifically validated are allowed in as evidence. This includes hair microscopy, bite mark comparisons, firearm tool mark analysis, and shoe print comparisons. In some cases, lab workers made errors in testing, testified inaccurately, or fabricated results.

Another factor is “official indifference.” Specifically, this means that actors in the criminal legal system – such as police and prosecutors – are incentivized to get convictions rather than seek justice. Moreover, immunity protects them from liability even if they are involved in misconduct, such as falsifying evidence or coercing witnesses.

Actually Innocent on Death Row

New York does not have the death penalty, and the last prisoner executed in the state was in 1963. However, it has only been less than two decades since the state’s death penalty statute was declared unconstitutional. Prior to 1972, New York was the state with the second most executions. Moreover, it was the first state to use the electric chair in 1890.

Since 1973, at least 190 people who had been wrongly convicted and sentenced to death in the US have been exonerated. Florida has the most actually innocent people exonerated from death row. Notably, there is a disproportionate rate of black and brown folks on death row being wrongfully convicted.

Today, there are 2,394 people on death row in the US (as of July 1, 2022). It begs the question of how many of those people are actually innocent. According to the Death Penalty Information Center, 20 people have been executed in the US who were likely innocent – the most recent of which occurred in 2020 in Alabama.

References:

• Brandon Garrett and Gregory Mitchell, “One of the Most Sacred Premises in American Law Is Bunk,” Slate.com (May 15, 2023). Available at: https://slate.com/news-and-politics/2023/05/american-juries-fail-blackstone-maxim.html (last accessed May 31, 2023).
• Equal Justice Initiative, Wrongful Convictions. Available at: https://eji.org/issues/wrongful-convictions/ (last accessed May 31, 2023).
• Death Penalty Information Center, Policy Issues: Innocence. Available at: https://deathpenaltyinfo.org/policy-issues/innocence (last accessed May 31, 2023).

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