Lots of innocents populate the prisons of America; The conventional wisdom that there are a tiny few miscarriages of justice is rebutted by serious studies.


The conventional wisdom is that innocent men and women are hardly ever sent to prison in the United States. A subset of that legend is that in the rare cases when the criminal justice system miscarries, that system is self-correcting, freeing the wrongfully convicted expeditiously.

For many, many decades, books about wrongful convictions have both created and reinforced the legend. Almost every book told the story of an isolated case. Almost all ended with the wrongfully convicted individual back in society.

The conventional wisdom is dead wrong, as a couple of prescient but mostly ignored books have demonstrated -- one in 1932, one in 1992. The truth is that thousands of innocent men and women are charged with crimes every year, many are imprisoned for long stretches, and it is a near certainty that quite a few have been executed.

In the past couple of years, the head-in-the-sand assumption has finally begun to crumble. In Illinois, a law-and-order governor has suspended the death penalty after coming to grips with the reality that as many men on death row have been exonerated as have been executed in recent years.

In other states, reforms are occurring that make wrongful convictions less likely. The acceptance of DNA technology in the courtroom is bound to be a powerful safeguard against wrongful convictions in cases that yield genetic material susceptible to testing.

Two new books, one published last year and one published in February, are almost certain to play important roles in putting the dangerously mistaken perception to rest for a long time.

Before those two new books are praised, it seems only proper to pay homage to the two earlier books that should have made a huge difference, but failed to do so.

In 1932, Yale University law professor Edwin M. Borchard wrote a book called "Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice." Borchard was a specialist in international diplomatic law who collected cases of wrongful convictions in the United States as an avocation. Conservative by nature, he was loath to recommend wholesale changes in the criminal justice system. But recommend changes he did, based on the overwhelming evidence that the system was sending innocent men to prison month after month, year after year.

Borchard's book received positive reviews for breaking new earth. But nothing changed in the criminal justice system as a result. Those inside the system continued to wear their blinders. The general citizenry continued to believe that anybody charged with a crime must be guilty of something. What sensible person would believe a convict crying "I didn't do it!" from behind the bars of his cell?

Sixty years after Borchard, Michael Radelet, a University of Florida sociologist, and Hugo Adam Bedau, a Tufts University philosopher (with help from Bedau's writer wife Constance Putnam), followed in Borchard's footsteps, which had been obscured by the sands of time.

Their book, "In Spite of Innocence: Erroneous Convictions in Capital Cases," upped Borchard's ante of 65 examples by chronicling 400. A few specialists tried to bring the book to widespread public attention. Unfortunately, it was published by a university press, whose books tend to receive little attention in the best of circumstances -- and, more unfortunately, by an especially low-profile press, at Northeastern University.

So the marvelous Radelet-Bedau-Putnam book hardly made a blip on the mental radar of those inside the criminal justice system or those on the outside who possessed some power to reform it.

But the book emboldened a few journalists to pay increased attention to the workings of the criminal justice system. Soon newspapers, magazines, television stations and radio networks were beginning to listen more closely to convicts, their family members and friends who were crying out that something was amiss. Instead of dismissing every such plea with the cynical "All prisoners say they are innocent," some journalists did some independent investigating. As more and more news items about individual cases appeared, a critical mass seemed to be forming.

Two Chicago-area journalists, David Protess and Rob Warden, became the role models of journalists interested in taking on the criminal justice system. Protess, a Northwestern University journalism professor, and Warden, editor of a magazine aimed mostly at lawyers, combined to write two popular books about individual wrongful convictions.

The first, "Gone in the Night: The Dowaliby Family's Encounter With Murder and the Law" (Delacorte, 434 pages, $21.95), appeared in 1993.

Unlike the Borchard and Radelet-Bedau-Putnam tomes, it was easily found in bookstores. Then it became a made-for-television movie. In 1998, Protess and Warden detailed an even more spectacular instance, because they, along with some Northwestern journalism students, not only freed four innocent men from prison, but also found the actual rapist-murderers. The book, "A Promise of Justice: The Eighteen-Year Fight to Save Four Innocent Men" (Hyperion, 258 pages, $23.95), will probably be a big screen motion picture soon.

As welcome as the Protess-Warden books were, they did not look deeply at the systemic problems of the criminal justice system that make wrongful convictions so much more prevalent than generally acknowledged.

A 1999 book by true-crime author Edward Humes changed the tide. Already a respected, steadily selling author, Humes set out to write about just one case, a la Protess and Warden. But the more he heard about other cases, the more Humes realized he would have to expand the book's scope. The title suggests it is a limited book: "Mean Justice: A Town's Terror, a Prosecutor's Power, a Betrayal of Innocence" (Simon & Schuster, 491 pages, $26).

But it is not limited at all. Humes examines numerous cases in Kern County, Calif., determining that a longtime prosecutor is out of control. (The prosecutor has vigorously disputed Humes' book in a 154-page published rebuttal.) In an appendix, Humes moves far beyond Kern County to look at hundreds of other wrongful conviction cases. An updated mass-market paperback appeared late in 1999 (Pocket Books, 720 pages, $7.99).

The brand new book that ought to move the debate even farther in the right direction is "Actual Innocence: Five Days to Execution and Other Dispatches From the Wrongly Convicted" (Doubleday, 298 pages, $24.95). The authors are Barry Scheck and Peter Neufeld, who are both New York City lawyers, and journalist Jim Dwyer. Scheck and Neufeld direct the Innocence Project at the Benjamin N. Cardozo School of Law. Using DNA testing when it seems warranted, Scheck and Neufeld have helped clear the names of dozens of innocent individuals, some of whom had been imprisoned for decades.

Some defenders of the criminal justice system believe Humes, Scheck-Neufeld and other writers, myself included, are exaggerating the numbers of wrongfully convicted men and women. Or, they charge, even if our numbers might be correct, we are distorting the truth by failing to point out that the vast majority of convictions are valid.

There are at least two problems with such arguments for the status quo. First, even if only 1 percent of all convictions are wrongful, that is unacceptable. If one person dies from a tainted hamburger, there is usually a national recall. If a few people die from drugs approved by the Food and Drug Administration, there is usually a massive alteration in the system that allowed such deaths to occur. So why does it take thousands and thousands of wrongful convictions before anything is altered in the criminal justice system?

Second, the law-and-order types who criticize the reformers forget that this is, after all, a law-and-order issue. When innocent men and women sit in prison for murders or rapes, the actual murderers and rapists are often still out there, murdering and raping again.

Steve Weinberg is a Columbia, Mo., investigative reporter who spends much of his time writing about wrongful convictions for newspapers and magazines. He is the author of six books, including a biography of Armand Hammer and "The Reporter's Handbook: An Investigator's Guide to Documents and Techniques." He is currently writing a biography of Ida M. Tarbell.

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