The Flipside Injustice of Wrongful Convictions: When the Guilty Go Free
Acker, James R., Albany Law Review
As the rosters of identified wrongful convictions continue to swell, (1) attention naturally focuses on the fractured lives of the innocent men and women who have endured the pains of unwarranted stigmatization and punishment. Their compound sufferings (2) become all the more apparent as statistics that detail the incidence, causes, and consequences of miscarriages of justice give way to identified individuals and glimpses of their life stories. (3) Post-conviction challenges in cases in which the innocent have been adjudged guilty often trigger the steadfast opposition of prosecutors (4) and are only resolved following years of sustained litigation championed by defense counsel on behalf of the unjustly convicted. (5) These attributes combine to invite conceptualizing "the Innocence Movement" (6) as defendant-oriented and adversarial, pitting law enforcement and prosecution interests against the defense in much the same spirit as the original trial.
The modest thesis of this article is that indulging an inflexible mindset of "us-against-them" in the context of miscarriages of justice is not only misguided but also counterproductive. Wrongful convictions entail profound social costs in addition to the hardships borne by the unfortunate individuals who are erroneously adjudged guilty. When innocents are convicted, the guilty go free. (7) Offenders thus remain capable of committing new crimes and exposing untold numbers of additional citizens to continuing risk of victimization. Public confidence in the administration of the criminal law suffers when justice miscarries. (8) At some point, as cases mount and the attendant glare of publicity intensifies, the perceived legitimacy of the justice system and the involved actors is jeopardized. (9) Associated monetary costs, paid from public coffers, represent yet another tangible social consequence of wrongful convictions. (10)
Adherents of neither the "Crime Control" nor the "Due Process" models of justice (11) should harbor disagreement about these simple premises. With the exception of the actual offenders, everyone benefits, and no one loses when innocent parties are spared conviction and when the actual perpetrators of crimes are brought to justice. (12) Acknowledging this commonality of interests causes other, ideologically divisive issues to pale in contrast. Every case of wrongful conviction is also a case where the guilty party remains free. (13) Taking this self-evident proposition to heart is a simple yet perhaps necessary step in helping overcome barriers to meaningful policy discussions and enacting long overdue reforms.
II. COMPOUNDING THE TRAGEDIES OF WRONGFUL CONVICTIONS: NEW CRIMES COMMITTED AND NEW VICTIMS CLAIMED BY THE TRUE PERPETRATORS
When the wrong person is convicted of a crime, the true offender remains at large, free to commit additional offenses. (14) The actual perpetrators of crimes were identified in nearly half (149/307, or 48.5%) of the DNA-exoneration cases reported by the Innocence Project through February 2013. (15) These true offenders are known to have committed at least 123 additional violent crimes, including 32 murders and 68 rapes, following the arrest of the eventual exonerees who were erroneously prosecuted and convicted. (16) Had they been apprehended in a timely fashion, rather than the innocent persons accused in their place, their future victims would have been spared death, injury, and the related pernicious consequences of criminal violence.
An exhaustive analysis completed by the Better Government Association and the Center on Wrongful Convictions (17) of eighty-five exonerations in Illinois between 1989 and 2010, documented the crimes committed by actual offenders while innocent parties were instead punished. (18) "[W]hile 85 people were wrongfully incarcerated, the actual perpetrators were on a collective crime spree that included 14 murders, 11 sexual assaults, 10 kidnappings and at least 62 other felonies. …