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Examining the Fairness and Accuracy of the Penal System

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Last week, Senator Jim Webb of Virginia introduced The National Criminal Justice Commission Act of 2009 -- an important piece of legislation with broad bi-partisan support that would create a commission to "look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom." The legislation specifically gives the commission the important responsibility of examining why the United States has seen drastic increases in our prison population, particularly for individuals convicted of drug crimes and for the incarceration of the mentally ill. The commission would also be charged with examining the costs of our current prison system, as well as the current state, if any, of post-incarceration/prisoner re-entry programs. There is no doubt that the alarming number of individuals incarcerated, and the demonstrated lack of prison re-entry/rehabilitation programs, make it very clear that our criminal justice system is in drastic need of the kind of examination and reform that Senator Webb's legislation calls for. However, as written, the bill does not call for an examination of our criminal justice system at the front end, to see whether or not we convict and incarcerate individuals using a fair, accurate, and efficient process.

Unfortunately, in recent decades, DNA exonerations all over the country, as well as research on the causes and costs of wrongful convictions, reveals that our criminal justice system does not utilize fair, accurate, and reliable procedures during criminal investigations or criminal trials. We cannot be confident in the investigations and convictions that send so many people to prison in the first place.

In order for the federal government to truly reshape our criminal process from "top-to-bottom," as Senator Webb's legislation calls for, then it is crucial this commission examines the causes and costs of wrongful convictions. An examination of why we send so many people to prison would simply be incomplete without an examination of whether we are sending the right people to prison. Research on the fallibility of eyewitness testimony, false confessions, weakness in the practice and use of forensic science, and the widespread and pervasive nature of prosecutorial misconduct or inadequate defense representation, all indicate that we do not have a fair and accurate criminal trial process. For example, as I wrote about in a recent blog post, just last month, the National Academy of Sciences, after a two year study conducted at the direction of Congress, released a long-awaited report concluding forensic labs and the system of oversight of forensic science are in dire need of broad structural changes.

Over two-hundred thirty people have been exonerated by DNA evidence for crimes they did not commit. Unfortunately, this figure does not even scratch the surface of the amount of people who have been wrongfully convicted, as mistakes can generally only be discovered in cases in which DNA evidence is available. In the vast majority of crimes that are committed in this country, such as drug crimes, no DNA evidence is present, but the flaws and weaknesses in the system are. Senator Webb's legislation cites some staggering figures--nearly 2.4 million people are currently in prison in the United States, a higher percentage of our population that any other country in the world. It is difficult to fathom that we have incarcerated millions of people using a system that is flawed and prone to error, but all evidence indicates we are doing just that. A National Criminal Justice Commission would be the perfect forum to examine and address these devastating and pressing problems with our criminal trial process.

Senator Webb's legislation rightly recognizes that our criminal justice system is in dire need of reform to be more effective at protecting public safety and upholding the rights of the accused. I commend the Senator for introducing this critical piece of legislation. It is my sincerest hope that, if established, a National Criminal Justice Commission truly will examine every aspect of our broken criminal justice system, and recommend reforms to improve the fairness and accuracy of the process we use to convict, sentence, and send people to prison.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.