Jon Gould co-authored this article
Although the economic downturn is severely stretching businesses, state coffers, and family budgets, we must not allow it to endanger the nation's criminal justice system and to increase the risk of wrongful convictions. Only by investing in reasonable criminal justice reforms now can we avoid enormous human and financial costs later.
Over the past twenty years, hundreds of people who were wrongfully convicted were cleared when DNA proved their innocence. Scores of others likely languish in prison because no DNA evidence exists that might clear them. In response to this human tragedy, many states have begun to address why these wrongful convictions occur. Some have updated their eyewitness identification and police interrogation procedures, and others have changed police training practices, or allowed courts to consider post-conviction evidence that might clear the defendant. But many more states have not yet recognized, let alone started to address, these problems. Many appear to lack the political will to do so, a problem that is sure to get worse as legislators everywhere struggle to balance their budgets by cutting programs.
Wrongful convictions are tragic for all involved, and they are expensive. Taxpayers pay for police investigations and criminal prosecutions that ensnare the wrong person. They pay the costs of incarcerating that person, and they may face substantial damages in wrongful conviction civil suits. All the while, the actual perpetrator is still on the street, able to prey on others.
But the reforms needed to prevent wrongful convictions may not be expensive. These reforms may not only prevent wrongful convictions and the terrible costs to all involved, but they may also prevent the taxpayers from incurring needless costs.
It is easy -- but wrong -- to say that we can save money by slashing government funding for lawyers for defendants who cannot afford to hire their own. In fact, defense lawyers without adequate training and resources are one of the greatest causes of errors that lead to costly wrongful convictions and perhaps even wrongful executions. A new study shows, for example, that suspects face twice the risk of a death sentence when their defense teams lack adequate resources. This risk -- which is independent of the facts of the case -- means that innocent defendants may well be sentenced to death simply for want of the resources necessary to prove their innocence.
Public defenders in a number of states have begun to refuse further cases because their overburdened caseloads make it impossible to provide an adequate defense. Leaving a defendant with an overburdened lawyer, or even no lawyer, is not an answer to the economic downturn. Ultimately, it only increases taxpayer costs and the suffering of victims as they confront appeals, retrials, and even exonerations. Providing good lawyers is ultimately a cost-saving measure.
Several other effective reforms are virtually cost-free. We must increase the accuracy of suspect identification. Police must change their line-ups to allow eyewitnesses to observe suspects one-at-a-time. They should videotape interrogations, making it easier to convict suspects who confess while avoiding expensive police misconduct lawsuits when the tape shows the police acted properly. Police officers should be trained to consider a wide net of potential suspects before honing in on the most likely perpetrator, and prosecutors should open up case files to defense lawyers so they understand, and can communicate to their clients, the strength of the prosecution's case. This can encourage settlement of the case without going to trial. Finally, judges must be able to hear post-conviction claims of innocence, remedying mistakes as quickly as possible.
This situation is not a question of bad faith. No one wants to convict the innocent. We all want to be safe from crime, and we want to use tax dollars efficiently. But we have a choice to make. We can proceed as we have in the past, paying out after-the-fact to clean up the mess of an erroneous conviction, or we can invest the time and effort now to prevent these mistakes in the first place. Justice compels our attention to these problems, but fiscal prudence demands that they be solved.
Jon Gould is Associate Professor and Director, Center for Justice, Law & Society, at George Mason University, and author of the book, The Innocence Commission: Preventing Wrongful Convictions and Restoring the Criminal Justice System.
Ginny Sloan is the President and Founder of the Constitution Project.