New Scholarship Spotlight: The Consequences of Error in Criminal Justice

Daniel Epps has posted the above-titled article on SSRN.  Download here.   Abstract below.  I haven’t read the piece yet, but the friend who sent it to me read it and said, “These kids with their Harvard degrees and Supreme Court clerkships and no real experience in the criminal law trenches can be really scary.”   Have a read…Enjoy!

“Better that ten guilty persons escape, than that one innocent suffer,” William Blackstone’s famous adage, stands for a powerful idea in the criminal law: that it’s essential to minimize wrongly convicting the innocent even at the expense of overall accuracy. This “Blackstone principle” accords with most people’s deeply felt intuitions about criminal justice.

This Article challenges that fundamental precept. It begins by situating the Blackstone principle in the history of Anglo-American criminal law. That history shows how the principle gained prominence — most notably, because in Blackstone’s time and earlier death was the exclusive penalty for many crimes — but provides no compelling justification today.

The leading modern argument for the Blackstone principle is that false convictions are simply more costly than false acquittals. But that argument is incomplete, because it focuses myopically on the costs of errors in individual cases. A complete analysis of the Blackstone principle requires taking stock of its dynamic effects on the criminal justice system as a whole. The Article conducts that analysis, which reveals two significant but previously unrecognized draw-backs of the Blackstone principle: First, its benefits to innocent defendants are smaller than usually assumed; it could even make those defendants worse off. Second, the principle reinforces a widely recognized political process failure in criminal justice, hurting not just defendants but society as a whole. The magnitude of these effects is uncertain, but they could more than cancel out the principle’s putative benefits.

The Article then analyzes alternative justifications for the Blackstone principle. None is satisfactory; each rests on dubious empirical premises, logical errors, or controversial premises. There is thus no fully persuasive justification for the principle. Rejecting the Blackstone principle would require us to re-think — although not necessarily redesign — various aspects of our criminal-procedure system.

Center for Prosecutorial Integrity Launches “Bring a Prosecutor to Justice” Campaign…

From an email press release:

How many times have you heard about a rogue prosecutor who was let off the hook after a wrongful conviction caused by prosecutorial misconduct? How often have you heard about a win-at-all-costs prosecutor who was later feted as “Prosecutor of the Year,” elevated to the bench, or even elected to high political office?

According to the CPI report, “An Epidemic of Prosecutor Misconduct,” prosecutors who engage in misconduct are punished in fewer than 2% of cases. But now, there’s a way to bring a measure of justice to these cases – the Registry of Prosecutorial Misconduct: www.prosecutorintegrity.org/registry/

Every prosecutor who is added to the Registry now finds himself or herself subject to public accountability. In fact we’ve been told that prosecutors in some states have already begun to think twice before withholding exculpatory evidence,knowing that they may end up being listed in our Registry!

There have been an estimated 16,000 cases of prosecutorial misconduct since 1970. Right now, the great majority of these cases are buried in appellate court opinions and dusty bar disciplinary records. We need to change that deplorable state of affairs.

Beginning this Monday, the Center for Prosecutor Integrity will be launching a two-week campaign called “Bring a Prosecutor to Justice.” We plan to add 400 new cases to the Registry. Each case costs $50 to locate, research, and enter the appropriate information into the database. So we need to raise $20,000 to accomplish the goal of 400 new cases.

While most malfeasant prosecutors will never face official sanctions, now we can shine the light of accountability on their behavior. And that will help turn the tide.

Your tax-deductible gift, large or small, will make a difference in the lives of millions of innocent Americans:www.prosecutorintegrity.org/donate/

Thank you.

E. Everett Bartlett, PhD, Director

Center for Prosecutor Integrity

P.O. Box 1221

Rockville, MD 20849

Office: 301-801-0608

Cell: 301-670-1964

Email: ebartlett@prosecutorintegrity.org

Internet: www.prosecutorintegrity.org

Facebook: https://www.facebook.com/CenterForProsecutorIntegrity

Working to end wrongful convictions through the enhancement of prosecutor ethics.

 

New research shows how race influences decisions in Manhattan DA Office

A new research study shows that prosecutors in Manhattan’s DA office treat blacks and Latinos more harshly than they do whites or Asians. Read more here.

Research documents are found here.

The research summary states on p. 3 (here):

“1. Blacks and Latinos charged with misdemeanor drug offenses were more likely to have their cases dismissed.
2. Blacks and Latinos charged with misdemeanor person offenses or misdemeanor drug offenses were more likely to be detained at arraignment.
3. Blacks and Latinos charged with drug offenses were more likely to receive more punitive plea offers and custodial sentences.
4. Asian defendants had the most favorable outcomes across all discretionary points, as they were less likely to be detained, receive custodial offers, and be incarcerated. Asian defendants received particularly favorable outcomes for misdemeanor property offenses (such as larceny and criminal trespass).”

In Netherlands, New Evidence Shows Innocence in Hilversum Showbiz Murder case

Submitted by the Knoops Innocence Project, Professor dr. G.G.J. Knoops, lead counsel, Carry Knoops-Hamburger, co-counsel, Lizette Vosman, co-counsel, Trix Vahl, paralegal:

On Tuesday July 8, 2014, the defense team of Martien Hunnik, as well as the attorney general of the Supreme Court of the Netherlands, filed a request for review of his criminal case. Hunnik has been convicted in 1984 for second degree murder on Bart van der Laar, a then famous music producer, in 1981 in Hilversum. Both requests are based on the results of a new criminal investigation into the case, which was initiated after the Knoops’ Innocence Project had filed a request thereto on March 19, 2013. The Knoops’ Innocence Project has been investigating the case of Mr. Hunnik since 2011.

On the basis of Article 461 of the Dutch Code of Criminal Procedure the defense may request the attorney general to conduct further research into a case, if there are indications that a novum exists. A criminal case can be reopened in the Netherlands on the basis of a novum, which is a new “finding” that was not known to the judge, and this finding must be of such a nature, that if the judge was aware thereof, it would have most likely resulted in a different verdict. Thus, under the new Article 461 of the Dutch Code of Criminal Procedure, which is operative since October 1, 2012, the defense may request for further research if there are indications that a novum exists, which may eventually lead to a request for review on the basis of a novum and consequently to the reopening of a criminal case.

The defense request for further research of March 19, 2013, was based on several indications that demonstrated that Mr. Hunnik could not have committed the crime in 1981. The Board of Procurators General, the highest authority in the Dutch Public Prosecution Service, supported this defense request with its own request for further investigation, because the Board also doubted the guilt of Mr. Hunnik.

Under the leadership of Attorney General D.J.C. Aben of the Supreme Court of the Netherlands, a new criminal investigation has been conducted from September 2013 till May 2014. As part of this investigation, many witnesses were heard and new tactical-technical research has been conducted. This led the Public Prosecutor to believe that Mr. Hunnik could not have committed the crime, but that others have done so.

On July 2, 2014, the results of the new criminal investigation have been revealed to the defense and Mr. Hunnik, which led the defense to submit a request for review to the Supreme Court of the Netherlands.

The request for review is based on three nova, which imply that Mr. Hunnik would not have been convicted if the judge was aware of these nova. Particularly the fact that a scenario arose with a different perpetrators, while excluding Mr. Hunnik as the perpetrator, was decisive. This scenario was already known to the Public Prosecutor in 2004, but only revealed to Mr. Hunnik and his defense team in 2012, when the Knoops’ Innocence Project was investigating the case.

Mr. Hunnik was very relieved when he was informed of the results of the new investigation, and the fact that also the Attorney General petitioned to reopen his case. Mr. Hunnik has been fighting for justice for over 30 years. He recanted his initial (false!) confession of January 18, 1983 already in April 1983; yet, the judges did not accept this. He has maintained his innocence since then. Unfortunately, he was not believed by the judges and was convicted primarily on the basisof his false confession. The new criminal investigation into the case demonstrated that virtually all elements of his confession, were already publicly known due to outlets in the media.

This request for review is unique, not only because it is the oldest review case in the Netherlands (33 years), but also because the new investigation case identified other perpetrators; yet, the court no longer has jurisdiction over the crime, due to the Statute of Limitations (since 1999).

Justice System Reform – Why We Can’t Get it Right. It’s All About Root Cause.

“Chicago police call for tougher penalties for firearm offenses after dozens of people were shot over holiday.”

You may have heard that dozens of people were shot in Chicago over this recent 4th of July weekend.  I just saw the headline above, which is the response from the Chicago police to the tragic weekend.  What struck me immediately is that this reaction is so stupidly human.  But sadly, it’s human nature.  To most, it would appear to be a quick-response, expedient solution to a terrible problem; and it’s the expediency of this “solution” that makes it attractive to both the politicians who make the laws and the constituency that elects them to office. The belief is that we can pass a law, make the penalties harsher, and then say, “There, we solved THAT problem.”  But guess what?  This will NOT solve the problem, and it NEVER will.  The US justice system has a culture of “punishment” and “revenge”.  We always seem to believe that the threat of more severe punishment will serve as a deterrent to future evil-doers.  The standard political response to the problem of “crime” has always been more cops, more prisons, and tougher sentences.  Well … the US already has the most draconian sentencing laws in the world, and yet, even though we have only 5% of the world’s population, we have 25% of the world’s prisoners (see Convictions  by the Numbers).

Doesn’t seem like super-tough sentences have done much to stem the US crime problem, does it?  And we know this.  Yet we, as an electorate, keep insisting from our legislators that there be more cops, more prisons, and ever tougher sentences.  It’s gotten to the point of being downright silly – tragic but silly.

So what should we do?  To fix any problem, you have to understand, and deal with, the root cause.  Unless you eliminate the root cause, the problem will not go away.  You can try to treat the symptoms of the problem (e.g. gun deaths in Chicago), but the problem will persist.  And I don’t believe we even know and understand what the root cause(s) of most crime are. I would expect that they’d have something to do with things like poverty, education, discrimination, culture, mental health issues, and more.

[Editorial observation:  I suspect that so-called "crimes of passion" are something that will always be part of the human condition, and we're just stuck with them.]

Unfortunately, dealing with root cause is much, much more difficult than dealing with the obvious symptoms of a problem, and I believe this is largely why it doesn’t get done.  It takes lots of time, lots of money, and lots of effort – and who wants to do that when you can just pass a law making sentences harsher, and then tell yourself you’ve just addressed the problem?  It is absolutely human nature to jump to what seems to be the quickest, easiest solution, despite the fact that the “solution” may not cure the problem at all.

There ARE systematic ways to uncover root cause.  They involve structure, process, and data.  Please see our previous post on Six Sigma.  Root cause is at the very core of what Six Sigma is all about.  Unfortunately, given our justice system and our processes for enacting laws, I see no feasible way root cause analysis and corrective action could be applied to the US justice system – at least certainly not within my lifetime.  I expect that we’re just going to have to continue stumbling along with our electoral and legislative processes, and hope that some day enough voters and enough legislators eventually “get it.”

National Registry of Exonerations June Report: Record-Breaking Pace in 2014, Causal Insights

The June 2014 update of the National Registry of Exonerations has reported 50 exonerations in the first half of 2014, which is on pace to be record-breaking and to exceed the 87 exonerations reported at year-end in 2013. Each year’s total is a dynamic number. The tally for 2013, for example, had recently increased to 89 as exonerations from the year continue to be discovered. As of June 27, 2014, the Registry was reporting 1,385 exonerations since 1989. As of today, the total has advanced to 1,394.

While these numbers are important, they are a high-level summary of the comprehensive information and case profiles that enable research and insights regarding miscarriages of justice.

An important revelation of the National Registry’s interactive database—which includes both DNA-proven and other official exonerations—is that different types of crimes have different primary contributors. Two recently created graphs enable examination of common contributors by type of crime. The graphs Continue reading

Monday’s Quick Clicks…