Does innocence matter in our criminal justice system?|
In this country, we're very focused on getting the procedures right. If you
think of what rights are, most rights are to a procedure--to a jury trial, to a
lawyer there, to be able to present certain kinds of evidence, to be able to
respond to evidence, to be able to cross-examine witnesses. Those are all
procedures. And the assumption of our system is that the right outcome will
emerge from appropriate procedures. Certainly that historically has been the
case. . . But we also know that any set of procedures will make mistakes
sometimes, it's inevitable. We hope that we make as few mistakes as we can.
But the assumption of the system as it has developed is that as long as we get
the procedures correct, we've got a good enough chance of having gotten the
Interview with Jim Liebman, a constitutional law professor at Columbia
In this interview he discusses the procedural obstacles to
fairness which occur in more cases than the criminal justice system can bear to
Don't the DNA cases show that we are not getting the right outcome in more
cases than we previously thought?
People get released and there's no investigation to find out what went wrong in
this case. It's like a train wreck and you'd say, "Well it doesn't matter,
nobody got killed. Of course there were some people hurt, but nobody got
killed, so we're not going to find out what happened." That's essentially the
way our system works right now. . . That's because we have a system that wants
to say, "Where's the procedural problem that occurred here?" You've got to
prove there was some constitutional violation that caused you to be convicted
if you were innocent. And if it was just a pure mistake, nobody's to blame,
the way the system works right now is that there is no basis to get that person
out of prison. You get 60 days, 120 days to make that kind of claim, but if
you don't make it in the right time after that you've got to show some kind of
constitutional or procedural problem that gets you out. . .
Innocence is not enough.
Innocence is not enough. There may be a right in capital cases--it's unclear.
But there certainly is no right in any other case to say, "I'm innocent, I
can't show anything else that went wrong at my trial. I can only show that I'm
innocent." That is not a basis for getting out of prison in this country.
It may not even be a basis for a new trial.
That's right. There are a couple of states that have very long time limits
that allow you to bring that kind of a claim over a period of time, but
elsewhere if you don't get in within the time period, then you've got to show a
constitutional violation. You don't show a constitutional violation, you serve
out your time.
People are shocked at that.
Part of the problem is that until DNA became usable ten years ago, it was very
hard to ever prove that it was wrong. So the procedures seemed like they were
enough. Now it's clear, and maybe we need to change in order to react to the
existence of DNA.
But often DNA alone isn't enough.
I think one of the big problems here is that the death penalty is a very highly
politicized issue in this country. Political careers stand or fall on how
tough [politicians] are on the death penalty. And there's a real fear that if
we open up the system and start looking in every nook and cranny for problems,
that we're going to have to be releasing more people not only from prison, but
from death row. And politically that's a very difficult, unpopular thing to
So the death penalty is distorting our view of the people who are not under
sentence of death, but are in prison for ten years, fifteen years, for life. I
think if the death penalty were not distorting the system, a lot of prosecutors
and attorneys general and others would feel a lot more comfortable about
looking at these cases. But they're afraid that they're going to let people go
from death row and that's a lot more controversial. . . There's a real fear
that in the death penalty cases we're going to have to reopen so many cases if
we insist upon getting it right.
There's a certain amount of play in the system and we have to live with that.
And there's a real fear that if we want to get perfect accuracy or near perfect
accuracy when you open all the death penalty cases and that's way too
controversial. And it will bring the death penalty system to a halt. So we
don't want to do it there and we can't do it in the non-death penalty area
because it creates a precedent for the death penalty area.
So innocence claims suffer because they're in the shadow of the death
I think that's right. A good example of this is the legislation that Congress
passed in 1996. It is called the Anti-Terrorism and Effective Death Penalty
Act. So you might think that it has nothing to say about common criminals who
aren't under the death penalty. They're not terrorists, they're not under the
death penalty. But what that act does is to withdraw procedures after you've
been convicted for deciding the legality and the accuracy and the reliability
of those convictions. And the category of people who are hurt most by that act
are not terrorists and not people under capital sentence, but simply people who
were imprisoned for street crime who got something less than the death penalty.
No question they have been hurt much more dramatically by that act than any
other group. . . And it, of course, reaches people who are innocent. . . .
There's no political constituency in this country for prisoners. So everybody
in a sense went along with it and it was really an accident of other things
that were happening.
Why did this happen?
We were releasing a majority of people off of death row because of these
procedural problems and this caused a lot of controversy in a lot of states who
believe very deeply in their death penalty. And so what they've done is to
say, "We are going to stop that from happening. We're going to preserve our
death sentences and we're going to get rid of these procedural protections
across the board, capital prisoners, non-capital prisoners." And so the
fall-out from the capital cases has been that non-capitally sentenced prisoners
have no more procedures left for them either. . .They have nowhere to go. . .
Where does the Supreme Court fit into this?
You can only get in the door if you've got a procedural problem. You can't get
in the door if you have only a substantive problem. But now the Supreme Court
is saying once you've gotten in the door on your procedural problem, we're a
lot less concerned than we used to be about procedural accuracy, we're more
concerned about protecting finality and the interests of the state. . . . All
they want to hear is, "I had a bad lawyer." Or, "The state withheld evidence."
Or, "There was a bad instruction given in my case." Something like that. Then
they can send it back to trial for a new jury to look at it. And then if
you're innocent, they hope the new jury will figure it out. . .
The Supreme Court recognizes of course that it is a harm to the system if
somebody is innocent and in prison or worse, getting executed. But they also
recognize that their role is to protect procedural rights. And so they want to
be able to say even if we can't do something about it, somebody else can. And
the obvious person who can is the governor, and that's what the Supreme Court
has said. .
And what can the governor do?
The governor in most states, or the governor working with some kind of parole
commission or pardon commission or whatever, has the capacity to release
people. . . to limit sentences. But the problem in this country has become,
everybody believes that the courts are going to do it, and everybody has made
the assumption that the courts will do it. The governor will say, "I don't want
to have anything to do with it, the courts will take care of it. If the courts
have denied relief, I have no business." And what's happened is we've cut back
on our judicial remedies, but everybody's still assuming that the courts are
there to do it. And now that we've cut back on judicial remedies, the governor
has to come back into the picture. . . .They don't want to do it. Of course
it's very, very controversial for a governor to release somebody from prison. .
. So, they pass the buck--except nobody's there to receive the buck anymore. .
So how does the criminal justice system come to grips with mistakes?
Well any system is going to make mistakes sometimes. You think of a factory
that's producing goods. Of course some of those goods coming off the end of
the factory line are going to be imperfect. In some sense as we live with
those mistakes, that's why we have these time limits [on appeals for re-trial].
The time limits say we want finality at a certain point. It's important to
just get on with things, to let people get on with their sentences and to get
rehabilitated. If they're spending their whole time worried about getting out,
they'll never get rehabilitated, never be a sense of retribution and all of
that. So we live with a certain amount of mistakes. That has to be the theory
of having these time limits.
The important thing, however, is to learn from the mistakes that we make so we
don't make them again. And that's my real problem with the way the system
works. We release people from prison now fairly frequently, for DNA and other
reasons, but when it happens, there's no investigation, there's no inquiry. It
just happens and that's the end. . . . They let the people out the back door
of the prison and the state in a sense washes its hands of the case and it
says, "Look, the system worked. We found the person eventually, we found them
before they were executed, so let's just take it as if the system has
If we cared to look, what do you think these DNA cases would tell us?
I think there certainly are more innocent people in prison than we believed.
We never could quantify it or think very carefully about it, or in a
disciplined way about it, so of course everyone would always say, "Yes, there
must be some innocent people in prison." But I think the assumption was that
it was a very small number. And the fact that there have been so many people
released recently--and there have been sixty people released from death row
even on this and other grounds.
You know the other problem of course is that the DNA only shows that there are
other mistakes that are being made in all cases, but there are only a very
small proportion of cases that actually have DNA in them, mostly rape cases and
some kinds of murder cases and things. But think about all those other cases.
Those other cases would have exactly the same problems that lead to convictions
in the DNA cases, it's just there's no DNA to catch them. So that's the really
frightening part is that we may have a lot of evidence here that there are many
mistakes being made in cases where we cannot catch it on the basis of DNA. And
that's why I think it's so important to have some mechanism to find out what
went wrong in these cases, so we can try and stop that from happening in all
cases, even those we'll never catch on DNA. . .
It's no one's job to attend to the system as a whole, just to fight to the
end in particular cases.
We ask everybody in our legal system to be adversarial. You fight hard for
your client. The theory is with two people fighting really hard, the truth
will come out. But we recognize that in the criminal justice system we can't
quite do it that way because prosecutors, they don't just represent an
individual, they represent the whole society, they represent justice. And so
we ask them to temper what they do in their adversarial roles by the desire to
get justice. But it's a very, very difficult thing to ask them to be very,
very adversarial and at the same time, to be concerned with what the judge
normally is concerned with. And I think in many cases it's too hard a task and
it breaks down. . .
The system corrupts in the sense that people of great integrity and great
belief in what they are doing don't have enough constraints in a way to give
them the grains of salt to be able to realize that although most of the time
they're getting it right, every once in a while maybe they get it wrong and
they need to just be willing to acknowledge that.
But the state often doesn't want to know.
I think the O'Dell case is a very good example where the problem lies.
It's one thing to say we want finality in the system and we don't want to
undermine somebody's incarceration. But O'Dell is dead, it's final. There's
nothing that's going to change about it. But there's a significant chance that
he was executed even though he was innocent. And now we have the chance to
find it out. In any other--in our daily lives, industry--something happened
like this you'd say, "Well, let's do an investigation and find out. If there's
a problem we'll solve it. If there wasn't a problem, of course then you know
we'll be able to say, look the system worked, he was guilty." It just makes no
sense to me.
So why aren't they doing it?
I think the only conclusion one can draw from the O'Dell case is that there is
a tremendous lack of confidence in the system. Because if there was confidence
in the system, the first person to say 'let's do the test' would be the one who
was running the system. "I want to prove to you my system works." And I think
the fact that people don't want to do that, even though there's no consequence
to the state as far as Mr. O'Dell is concerned is that they don't have much
faith in the system at this point.
speaking out ·
total system failure? ·
how far will it go? ·
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