How Many Innocent People Are in U.S. Prisons?

According to a February 2016 report from the National Registry of Exonerations, a project at the University of Michigan Law School, there were 149 exonerations in the U.S. in 2015. The rate of exonerations has been increasing rapidly for several years. The 149 defendants who were exonerated in 2015 served, on average, around 14-and-a-half years in prison. According to this report, there are tens of thousands of false convictions each year across the country, and many more that have accumulated over the decades.  

The Innocence Project’s website states that the few studies that have been done estimate that between 2.3% and 5% of all prisoners in the U.S. are innocent. If just 1% of prisoners are innocent, that would mean that more than 20,000 innocent people are in prison.  With about 2.4 million people incarcerated in the U.S., if the rate of innocence is 5%, as many as 120,000 innocent people could currently be in prison in this country.

Echoing Richard Nixon, Donald Trump calls for “law and order.”  We should remember the full-page ad he placed in the Daily News in New York in May 1989, regarding the “Central Park Five.” In that ad, Trump stated that “civil liberties end when an attack on our safety begins.” The headline of his ad was “Bring back the death penalty.  Bring back our police.” The five young men in that case were tried in the media, and ultimately convicted and imprisoned after police coerced their confessions. Their eventual exonerations were thoroughly covered in a documentary directed by Ken Burns. Sadly, the police and prosecutorial misconduct in their cases are very common in this country.

Thankfully, on September 28, Governor Brown signed SB 1134 into law, which enacts a standard of proof that innocent people, with strong new evidence of innocence, can meet, making California comparable to 43 other states. The new California standard is still difficult to meet, but is fair. The bipartisan support for this bill in both the California Assembly and Senate is encouraging, and demonstrates that criminal justice reform is an area where Democrats and Republicans can work together.

Our rates of incarceration in the U.S. are staggering and shameful.  The fact that we incarcerate vast numbers of innocent people only adds to the horror. We should all take a hard look at the biases, incentives, and political demagoguery that foster so much injustice for so many. The reform of our criminal justice system should be one of our highest priorities, as we inch our way towards liberty and justice for all.

The Economics of Mass Incarceration

In the U.S. we have built a system of mass incarceration that has proven to be a cruel and self-defeating answer to poverty, income inequality, the lack of mental health services, and racial tensions. It took decades and massive government spending to create. Unfortunately, it is not cost-effective and is not working. In addition to being immoral and unjust, it fails a basic cost-benefit analysis.

The United States has, by far, the highest prisoner population in the world.  Not just the highest proportion of people locked up, but the highest number in the world (2.3 million people).  With less than 5% of the world’s population, the U.S. holds over 20% of the world’s prisoners. What is the return on that investment of our tax dollars?

Last April, the White House held a bipartisan conference of economists and policy analysts to look at our criminal justice system through an economic lens. As part of the conference, the White House Council of Economic Advisers released a 79-page report, which is available online, titled “Economic Perspectives on Incarceration and the Criminal Justice System.”

Looking at this problem from an economic cost-benefit point of view should not be the only, or perhaps even the primary, reason for us to be concerned about over-incarceration.  But it is one way of looking at the problem, and it is one that helps to make this a bipartisan issue.  For example, one Republican who spoke at the White House meeting, and who served on George W. Bush’s Council of Economic Advisors, called criminal justice reform a “rare public-policy moment” that offers both parties a chance to save taxpayers money, help more people into jobs, strengthen families, and reduce poverty without sacrificing public safety.

We have allowed politicians to overspend on incarceration rather than more cost-effective solutions, such as hiring more police and focusing on areas of high-crime.  For example, the U.S. employs two-and-a-half times more corrections officers per person than the global average, but 30% fewer police.

The Obama administration’s recent decision to phase out the use of private for-profit prisons for federal prisoners is a welcome step in the right direction.  But federal prisoners are a relatively small segment of the U.S. prison population overall.  According to The Economist, there are 2.3 million people behind bars in the U.S.  193,000 are in federal prisons.  Approximately 22,000 of those are in facilities run by for-profit companies.

After years of passing 3-strikes laws, mandatory minimums, and harsh sentences for non-violent drug offenders, we have created a system of staggering numbers. Thankfully, we are hearing more and more about criminal justice reform from members of both major parties. There is much to be done in this area. I want to urge all concerned citizens to keep a sharp focus on this issue. I think there are few issues that touch so many aspects of our social and economic problems, and that provide such an opportunity for bipartisan cooperation.

The Culture of Conviction, the Power of Prosecutors, and Your Vote

We hear a lot these days about the problem of mass incarceration and over-criminalization in the U.S. With less than 5% of the world's population we have over 20% of the world's prisoners.  We have gone completely off the rails.  

According to The Sentencing Project, "There are 2.2 million people in U.S. prisons and jails--a 500% increase over the last 40 years. Changes in law and policy, not changes in crime rates, explain most of this increase. The results are overcrowding in prisons and fiscal burdens on states, despite increasing evidence that large-scale incarceration is not an effective means of achieving public safety."  I recommend taking a look at their web page, which documents this criminal justice data.

President Obama has taken on the issue and has called for reforms.  In September, 2015, the HBO program "Vice" did an excellent piece on the President's initiative.

Criminal justice reform has bipartisan support.  There is a bill working its way through the Senate that would ease mandatory minimum sentences for nonviolent offenders.  At this stage, backers need to get Senate Majority Leader Mitch McConnell to take up the bill. It appears that one reason some Republican Senators (Senator Charles Grassley of Iowa, for example) are trying to look reasonable on this bill is that their refusal to address the vacancy on the Supreme Court is making some of them feel vulnerable going into the November election, and could lead to Democratic control of the Senate.

There is increasing evidence that the most powerful players in this story are prosecutors. District attorneys and their deputies have wide latitude regarding whether to press charges and what charges to file. Adam Foss, a prosecutor with the Suffolk County District Attorney's Office in Boston, recently did a wonderful TED talk where he clearly and passionately articulates the role of prosecutors like himself and how they can pursue the greater good for our society, rather than just promote a culture of conviction.  I recommend his presentation. It is 15 minutes well spent.

For those of us who live in safe and comfortable communities, I think it is easy to think of this issue as an abstract societal problem that doesn't happen near us.  But this runaway "tough on crime," "culture of conviction" permeates our entire criminal justice system throughout the U.S.

For example, there is an ongoing massive prosecutorial abuse scandal in Orange County, California. Thanks to the work of Public Defender Scott Sanders we know that for decades the Orange County District Attorney's office has been secretly planting informants near defendant's jail cells, illegally withholding information about this practice from defense attorneys, and then lying about the practice in court.  It is illegal for law enforcement to deliberately deploy informants to coax incriminating statements from a defendant who's already been charged and has the constitutional right to an attorney and to remain silent.

Erwin Chemerinsky, along with more than thirty other legal experts, including ex-prosecutors, has called for a federal investigation into the Orange County District Attorney's office and the Orange County Sheriff's Department.

I recently learned from a Washington Post opinion piece that two prosecutors from that same Orange County DA's office (Michael Murray and Larry Yellin) are running for Superior Court judgeships on the June 7 ballot.  According to the opinion article in the Washington Post, both of these prosecutors have, by their own admission, withheld evidence--a practice that seems to carry little risk for prosecutors, as they seem to face few, if any, sanctions when it occurs.  Might this have something to do with the fact that most judges are ex-prosecutors? 

As we cast our ballots in this and future elections, we should think about how our mass incarceration problem is being addressed, and where the candidates stand. 

FBI vs. Apple

No amount of access to your thoughts, movements, or acquaintances will ever be enough to satisfy the inevitable authoritarian interests of law enforcement.  The latest manifestation of this struggle is the FBI’s attempt to force Apple into government service as a government spy.

No government should be allowed to force companies to become tools of government surveillance.  If the FBI gets its wish, there will be a long list of repressive regimes lined up to demand backdoor access to encrypted communications.  This is not just a matter for private communications, but is also a matter of security for nations, and businesses. 

Our government law enforcement agencies (federal, state, and local) can access more information about your behavior and movements and communications than at any time in history.  But in the minds of many in law enforcement, it is not enough.  

The government is seeking unprecedented authority, with huge implications.  It’s not about one phone, it’s about every phone, around the world.  Creating back doors to computer encryption opens up security holes that can be exploited by any and all governments, and private criminals.

In this case (FBI vs. Apple), as in many, the government is presenting a false choice between privacy and security.  Law enforcement has a wide array of tools to investigate and prosecute terrorist incidents.

Does law enforcement have a legitimate right and interest in obtaining otherwise private information when there is warranted probable cause?  Of course.  No one denies this.  Do all governments overreach at times and conduct themselves in ways that are illegal, unwarranted, and unnecessary?  Of course.  That is also undeniable established history, and requires only a little knowledge of the past and present and some rudimentary understanding about human behavior in groups and organizations, and the inevitable incentives and disincentives that arise where there is authority and power.  Fortunately, in the U.S. we have a constitution and amendments that guarantee certain protections against unwarranted government intrusion in our lives.  The existence of that constitution, and the amendments, and the statutes that ostensibly protect people from unwarranted government power and intrusion do not, by themselves, guarantee protection of privacy.  There always has, and always will be, an adversarial relationship between the right to privacy and government interest in accessing personal information.  This is not a struggle only for the past, or the present, or the future.  It is always and forever ongoing.

Our knowledge of the extent of government overreach in these matters is largely due to the actions of whistleblowers and activists who have exposed  government programs.  We only learned about the FBI’s illegal surveillance of Americans (COINTELPRO) from 1956-1971 after some citizens broke into an FBI office in 1971.  This interesting bit of history has been well documented in books and documentaries.  This type of government paranoia and surveillance is not, historically, that exceptional.  In the 1970’s, reforms were put in place in response to the Church Committee’s 1976 findings that the FBI and CIA had conducted domestic spying on lawful political activities.  Many of these reforms were rolled back after 9/11.

Technology has made your life more transparent than it ever was in the past.  Your use of ATMs, credit cards, and cell phone towers are tracked, and can be acquired by law enforcement under certain conditions.  Our license plates are photographed and stored by a variety of agencies, and can be correlated with geographic data. This “ambient” street-level surveillance is all around us.  Many of your movements in public are captured by video recorders.  Phone records of all the phone numbers you connect to can be subpoenaed.  We leave a trail of movements and communications that can be accessed by law enforcement.

The Bush administration admitted that the FBI and CIA had received several warnings that Al Qaeda network members were taking flight lessons and had plans to hijack commercial airplanes in the U.S.  The government admitted that its failure to act on these warnings was not due to a lack of law enforcement powers or authority.  The failure resulted from an overload of information, a lack of translators, and failures of cooperation and coordination between intelligence agencies.  Providing law enforcement with wider lattitude to permit monitoring and collecting information from individuals not suspected of criminal activity creates more information overload, and too much time and money wasted on false leads.

We should resist the efforts of any and all governments (foreign and domestic) to force tech companies to create backdoors to our private, personal and business data.  Strong encryption makes us a safer and more prosperous nation, even if government agencies cannot read or hear everything you have ever said or thought.