We must reframe and reform the way that we think about innocence in our criminal justice system.
Simply being innocent should be enough to be freed from jail. Unfortunately, it is not that simple in America.
Take as an example: Kennedy Brewer. In 1995, he was arrested and sentenced to death row for murdering his girlfriend’s three-year-old daughter in Mississippi. Brewer continuously maintained his innocence. While in prison, he took a DNA test which confirmed his innocence in 2001. However, he was forced to remain in prison for over five additional years awaiting a retrial. After the Innocence Project intervened, the police found the real murderer, Justin Albert Johnson, who later confessed. Brewer displays how the wrongfully convicted are cheated from swift restorative justice.
While Brewer’s case displays how the individual decisions of the local district attorney may halt justice, the entire U.S. legal system ignores the plight of these innocent individuals.
A person wrongfully convicted can seek a pardon or file a coram nobis petition. However, a pardon typically requires influential political connections (say your father) or massive public support. For the average applicant, a claim of innocence is seen by political officials as a sign of denial and immaturity. A coram nobis petition, only available in some states, requires a prisoner to present narrowly defined ‘new’ evidence which could not have been discovered during trial with due diligence. In addition, this evidence must be presented to the original trial judge, who is likely opposed to hearing evidence from someone they previously deemed guilty.
The last avenue of freedom for someone wrongfully imprisoned is to prove a constitutional violation occurred via a writ of habeas corpus, a legal petition where people can challenge their conviction. However, the Supreme Court case Herrera v. Collins determined that to imprison someone innocent of the crime they were committed for is not inherently a constitutional violation.
“There is no basis in text, tradition, or even in contemporary practice (if that were enough) for…a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction,” said Justice Antonin Scalia in a concurring opinion. Not only does someone wrongfully convicted have no right to their freedom but their evidence of innocence is not even guaranteed judicial consideration.
While numerous legal arguments can argue against the Supreme Court decision that holding an innocent person in jail is a constitutional violation, it’s largely futile. For the foreseeable future, the Supreme Court is a political entity which would rather keep people locked up than actually deliver justice to innocent people.
While the thought of an innocent person behind bars might be jarring, it is not inaccurate. Since 1989, 3,622 people have been exonerated and more than 32,750 years of their lives have been stolen, according to the National Registry of Exonerations (NRE). An estimated 2.5-5% of the people in prison right now are innocent of the crime they were put behind bars for. Currently, 55,000 to 110,000 people are currently trapped in a nightmare of wrongful imprisonment in America.
Unsurprisingly, freedom is stolen across racial lines. More than half of the exonerees between 1989 and 2022 are Black, despite the fact that Black people account for only 13.6% of the nation’s population. Innocent Black people are seven times more likely to be wrongly convicted of murder than innocent white people, according to a 2022 report by the NRE.
There’s a balance, of course, to be struck between efficiency and accuracy in the U.S. criminal system, and the U.S. has certainly chosen efficiency–much to the horror of Benjamin Franklin who once wrote “it is better (for) 100 guilty Persons (to) escape, than that one innocent Person should suffer.”
Only an estimated 2-3% of criminal charges result in a trial, and a large majority of criminal charges end in a plea deal. Prosecutors often threaten more serious criminal charges as a tax for going to trial. Combine that with the obvious financial burdens of trial and frequent discriminatory jury selection, a trial is a luxury not everyone can access equally.
However, the U.S. legal system was built around an idea of strong opposition between the prosecution and defense. It is within this opposition that the truth appears. While this stream of plea deals might be easier on the tax payer’s wallet, it’s not on lady liberty’s.
This article earned a second-place commendation in the Dreier Roundtable Op-Ed contest.
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