Prof. Marvin Zalman

By Professor Marvin Zalman.   Full article here.

The conclusion states:

The ultimate question is whether the prospect of, at a minimum, 2,000 innocent defendants going to prison every year (with capital murder defendants a disproportionately higher part of this total as their wrongful conviction rates are demonstrably higher than 0.5%), and another 3,000 receiving lesser felony sentences, should move the innocence reform agenda. That question will be decided in the political and policy arenas. Whatever activists or policy makers do, scholars have an obligation to think clearly about the issue. This obligation led me to rethink the bases of my belief that the Estimate of a general wrongful felony conviction rate of 0.5% to 1.0% is correct, which reconsideration has been explained at length herein.

As the Estimate is an estimate it could be wrong in either direction. It is likely that the number-of-wrongful-convictions-is-vanishingly- small hypothesis is the ideologically tinged wishful thinking or defensive reaction of some judges and prosecutors. Against such a conclusion, I hold to the Estimate beyond a reasonable doubt (in the law’s terminol-ogy) or almost certainly (using words of estimative probability).  It may be that the actual general rate of wrongful convictions across the nation is higher, a possibility that is limited by the fact and the conjecture that wrongful death sentences are higher, at about 3%.  It is also cabined by the opinion surveys of justice system actors.  Against the Estimate being wrong in that direction, I hold to it with less firmness. In legal terms I believe that clear and convincing evidence and reasoning supports the Estimate against a higher error rate. Applying terms of estimative probability, the Estimate is probably correct against a higher error rate.

Acceptance of the Estimate creates a moral obligation to correct the factors that most likely generate wrongful convictions. If the Estimate is wrong as against higher estimates of 2 or 3% or higher, moral and professional reasons to enact innocence reforms become stronger. The more difficult issue is whether an error rate of 0.5 or 1% justifies reform efforts. I believe that most Americans would say that one out of 100, or even one out of 200 unnecessary infections contracted by hospital patients because of preventable systemic problems is too high in an advanced technological society. I believe that most Americans would say that one out of 100, or even one out of 200 innocent defendants convicted of felonies because of a range of preventable systemic errors by the very governmental system designed to provide justice is too high in a society guided by the rule of law. Arguments to the contrary are based either on ignorance of criminal justice realities or on faulty cost-benefit analyses. The intuition of those who support justice system reforms designed to prevent wrongful convictions, that wrongful convictions are large in number, is supported by a sober look at the realities of the criminal justice. The imperative to act and to keep as few as 2,000 innocent inmates a year out of prison is supported by our ideals of justice and our com- mitment to professionalism in the justice system.