The Faulty Numbers Behind Scalia's Deadly Detour

07/16/2006 04:48 pm ET | Updated May 25, 2011

Alan Newton left a New York prison last week after serving 22 years for a rape he didn't commit. Though eligible for parole for nearly a decade, he was repeatedly denied his freedom because he insisted on his innocence. Through repeated motions, and letters from his prison cell, Newton relentlessly sought the DNA testing that eventually cleared him. But it took the New York City Police Department nearly a dozen years to "locate" that evidence - even though it was stored in the original evidence barrel the whole time -- years Allen Newton spent in prisons like Attica and Sing Sing.

The Newton exoneration stands as a particularly human and poignant rebuke to Justice Antonin Scalia's concurring opinion in the recent Supreme Court case of Kansas v. Marsh. In that death penalty decision, Scalia abandoning the general principle that judges should confine themselves to the questions presented, went far out of his way in order to attack what he termed the death penalty "abolition lobby." In seething rhetoric, comprising pages of his concurrence, Scalia embraced the thinking of a growing number of right-wing death penalty proponents who claim that our criminal justice system is nearly perfect in adjudicating guilt and innocence. Indeed, Scalia gleefully excoriates several of his fellow justices for succumbing to what he believes are unfounded fears of fallibility created by the extensive attention garnered by the exonerated.

The problem with Scalia's argument is that it is grounded in misleading statistics asserted in a pro-death penalty propaganda piece Leni Riefenstahl would have been proud of. In an Op-Ed published in the New York Times on January 26th, 2006 (which Scalia cites and quotes at length) Joshua Marquis, The District Attorney of Clatsop County Oregon and oft-quoted spokesperson for the prosecutorial lobby, argued that the conviction of the innocent was essentially unheard of.

Citing a 15 year study of exonerations by Samuel Gross, a law professor at the University of Michigan, Marquis argues as follows: "Let's assume... that there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent--or, to put it another way, a success rate of 99.973 percent." Surely, Marquis insists, when only a few out of every ten-thousand criminal defendants are innocent, and they have appeals and executive clemency to rely on, our system of criminal justice is working as well as we could possibly hope. That argument, (presaged in a law review article Marquis wrote in 2005) has driven the thinking and rhetoric of those who oppose criminal justice reform. With Justice Scalia's imprimatur, this flawed analysis is sure to take an even more prominent place in the criminal justice debate.

Unfortunately, Marquis has propounded a flawed analysis grounded in numerological trickery. Here's the problem: Comparing exonerations to felony convictions is like arguing that the Ford Pinto was safe because compared to the total number of automobiles sold in the United States, not many of them blew up. The proper way to determine the failure rate of the Pinto is not to use as the denominator the total number of cars sold, but rather the number of similar Pintos. In the same way the denominator in Marquis's fraction shouldn't be the 15 million felony convictions over the past 15 years, but rather the number of similar cases in which innocence is actually disputed.

Marquis's first arithmetical sleight of hand is to conceal the fact that most felony arrests aren't contested. In fact, 95 percent of them are resolved by plea rather than trial. Thus in 19 out of every 20 felony cases, there is no contested issue of guilt and no real claim of error. It is only, therefore, trials in which someone is convicted while maintaining his innocence, which should be considered. So of Marquis's 15 million felony cases, about 14,250,000 were pleas. And when the proper denominator drops from 15 million to 750,000, the error rate jumps by a factor of 20 from the seemingly ignorable 3 in ten thousand to north of .5 percent.

And the numbers get even more disturbing when even a modicum of analytical sophistication replaces Marquis's misleading arithmetic. Because of the overwhelming demands involved in reinvestigating a crime with an eye toward exoneration, it is almost exclusively defendants sentenced for murders and rapes that get the scrutiny; the chances that a drug defendant is going to interest an innocence project are virtually nil. Thus the only people who have any meaningful access to the possibility of exoneration are a tiny subset of criminal defendants. This is the second bit of analytical trickery. In reality, murders constitute only a paltry .8 percent of felony cases, and rapes less than 2 percent: their combined total--less than 450,000.

It is true that murder cases go to trial far more often than run-of the mill drug sales or check forgeries. In fact, some 44 percent of murder cases actually go to trial with an average conviction rate of about 85 percent. But even using these numbers, of the 150,000 or so murder cases in Marquis's 15 million, only about 66,000 homicide defendants maintained their innocence through a trial, of which about 56,000 were convicted. Using similar numbers for rapes yields somewhere south of 200,000 contested convictions in serious cases. In the final analysis, Marquis isn't just off by a factor of twenty--he's off by orders of magnitude--his pretty dream of the virtually error-proof system simply unsupported by the numbers.

Indeed, the numbers tell a vastly different story--of an unpredictable and overburdened criminal justice system dependant on plea bargains, and already far too certain of guilt. As Alan Newton's wasted years poignantly demonstrate, leaving citizens to rot in prison for crimes they didn't commit is a tragic injustice whether it is freakishly improbable or terrifyingly commonplace. But as long as the stubborn opponents of change refuse to acknowledge the scope of the problem, much needed reforms will remain--like the exonerating evidence in Mr. Newtons's case--unexamined. The tragedy here isn't merely questionable scholarship, it's the degree to which the conservative prosecutorial lobby has latched on to transparent advocacy masquerading as statistical argument. That Justice Scalia has adopted this reasoning wholesale, seemingly without critical analysis, is merely further proof that when it comes to criminal justice reform, it is hardly the zealousness of the abolitionist movement we have to fear.

David Feige was a public defender in the Bronx and is the author of INDEFENSIBLE: One Lawyer's Journey into the Inferno of American Justice published last month by Little, Brown & Co. He can be reached at

A version of this article appears in the Ideas Section of the Sunday Boston Globe. You can view the edited version here.