Thursday, December 19, 2002

Better Living Through Science

Perhaps DNA testing has the potential to provide greater benefits to our system of justice than what the Ramsey County model would imply (see the post below, the soon to be award-winning article “Frankly My Dear...”). Michael Kinsley in the Washington Post has an editorial entitled "Why Innocent People Confess" and it discusses not only the power of DNA evidence to exonerate the wrongly convicted by jury, but also to counter balance the institutional pressure that creates an entire class of those bearing false witness against themselves - that is, those who confess to crimes they haven’t committed.

It’s seems absurd for an outsider to the system, like me, to believe that someone would confess to a crime, often times a serious crime, for which they were entirely innocent. But according to Kinsley, that happens all the time. This is primarily due to the (arguably) unreasonably high level of protections provided to the accused and the corresponding high costs necessary to prosecute a crime in the official manner. The system of justice itself would grind to a halt if all crimes and criminals were prosecuted under the official procedures outlined in civics (and law) textbooks. Therefore, prosecutors have the practical imperative to expedite the process in a more efficient manner. This manifests itself in the form of plea bargaining - offering a defendant a chance to be prosecuted for a lesser crime, and to suffer a lesser penalty, if the defendant will agree to waive his Constitutional rights to a full and complete trial. This offer is typically presented with the threat that if the defendant doesn’t take it, the full weight and fury of the court will be brought against them. Of course, this offer is usually good enough for the guilty to cop a plea. But often times the innocent take it as well, as they reasonably conclude that ‘having the book thrown at them’ will effectively end their lives as they know it, whereas the consequences of a lesser charge may be at least survivable. According to Kinsley:

Plea bargaining might also be thought of as an insurance policy. Insurance is a way of trading the risk of a large bad outcome (your house burns down and you're out $100,000) for the certainty of a smaller bad outcome (a bill arrives and you're out $850). Plea bargaining is a way of trading the risk of 20 years to life for the certainty of five to seven. But by creating this choice, and ratcheting up the odds to make it nearly irresistible, American justice virtually guarantees that innocent people are being punished.

This is an insurance policy many are willing to buy. 95% of criminal convictions come as a result of plea bargains and only 5% as a result of a conviction at trial:

But for every one criminal conviction that comes after a trial, 19 other cases are settled by plea bargain. And when, as part of a plea bargain, innocent people confess to a crime they did not commit, that isn't a breakdown of the system. It is the system working exactly as it is supposed to. If you're the suspect, sometimes this means agreeing with the prosecutor that you will confess to jaywalking when you're really guilty of armed robbery. Sometimes, though, it means confessing to armed robbery when you're not guilty of anything at all.

Reasonably speaking, the use of DNA evidence should change this calculus for some defendants and hopefully the presence of innocent citizens in prison will become an increasingly unlikely phenomenon (at least the presence of “innocent” citizens not already doing time for any separate double murders they may have committed).