12/12/2012 10:42 am ET Updated Feb 11, 2013

The Central Park Five : A Still Relevant Call for Change

A new documentary by David McMahon, Sarah and Ken Burns, The Central Park Five, recounts the arrest, prosecution and imprisonment of five African-American and Latino teenagers following the highly publicized 1989 assault and rape of a white 28-year-old Upper East Side investment banker in what came to be known as the Central Park Jogger Case. There was no evidence linking the boys to the crime, save for confused, coerced, later recanted confessions that turned out to be false. Semen found at the scene was not a DNA match to any of them. In 2003 -- years after four of the five had completed their sentences -- a New York City judge vacated the charges after another man voluntarily confessed and his DNA was matched to the crime scene.

However this is unfortunately not a story of redemption: the New York City Police Department refuses to acknowledge any wrongdoing in the case despite the obvious illegalities of the investigation, which included bringing 16-year-old Kharey Wise to the crime scene and attempting to trick him into leaving DNA traces behind, according to Mr. Wise and Yusef Salaam during a Q&A session following a screening of the film. At least one of the prosecutors refuses to even admit that she convicted the wrong guys and the city stubbornly fights a civil suit brought by the five for compensation for the 40 years they collectively spent behind bars for a crime they did not commit. The film also digs into the parallel stories of a racist and retributive public opinion that so quickly condemned the innocent teenagers and the corporate media's facilitation of this atrocity that, once combined, rip the veneer off any idea of a post-racial U.S. of A.

Visually, the film, mostly due to its reliance on grainy real-time newsroom footage, appears to describe a New York of long ago, which provides the audience with a measure of psychic safety from the facts of the case, which might otherwise provoke a profound sense of guilt relating to the public's role in the convictions and their spoken and unspoken beliefs about the guilt of the suspects. But the truth remains that the law enforcement and prosecutory practices that served to steamroll these five boys into prison are still widely used and that the general public continues to support a criminal justice system that retains the image of young men of color as Enemy No. 1 despite mounting evidence that this assignation is catalyzed more by institutionalized and unconscious sociological factors (racism) than disparities in criminal behaviors between demographic groups.

In New York City, a small fraction of legal cases go to trial -- in 2000 there were 412 criminal trials engendered by 220,000 arrests -- with the vast majority of cases resolved through a prosecutor-driven pleading system that typically weighs the likelihood of conviction rather than actual innocence or guilt. Due to the unbalanced power dynamic between prosecutors and defense attorneys some innocent people choose to plead "guilty" rather than run the risk of being found guilty later on by the court, which typically penalizes you for seeking due process by adding additional criminal charges. No one seems to mind this type of perjury, even though judges have to sometimes coach defendants through the part of the plea where they are forced to admit their role in the crime whether they were involved or not. While this practice unclogs the court calendar -- if just 2 percent of arrests went to trial there would not be enough judges, lawyers or courtrooms to adjudicate them in under speedy trial rules -- it facilitates an unusual type of justice. The idea that innocent people will have justice served through the court system is generally a false one.

Law enforcement practices are the single greatest contributor to the number of innocent people arrested, who as we have seen may later be found guilty whether at trial or through a plea agreement despite their innocence. Around 50 percent of suspects confess under the duress of interrogation. While most people do not falsely incriminate themselves, it is not as uncommon as one might think. Of more than 300 people exonerated from death row based on DNA evidence, nearly one in four had provided a false confession prior to their sentencing.

As we saw in The Central Park Five, police use psychologically coercive and deceptive tactics, especially with young people, despite evidence that suggests that these procedures are unreliable. In order to force a confession police are trained to use techniques that include offering false evidence, preventing suspects from speaking for protracted periods of time, the minimization of the crime and by extending false promises of liberty. One study of proven false confessions showed that the average duration of interrogations was 16.3 hours. These practices appear to be the norm despite studies that have shown that up to 44 percent of exonerated juveniles had made false confessions, with one group of exonerated 12 to 15-year-olds falsely confessing at even higher rates. It is the effort of law enforcement, the length and intensity of the interrogation, which is most likely to produce confessions, not the guilt of the suspect.

People have only minimal protections from police officers following arrest and young people are especially vulnerable to coercion due to misunderstandings about their rights and their desire to please authority figures. Meanwhile, later on at trial, these misunderstandings -- the perception that the young person did not try to avoid their responsibility for the crime -- can be used again against them as an example of not showing remorse, which is often a factor in deciding to charge juveniles as adults.

The U.S. Supreme Court, in Roper vs. Simmons, 2005, recognized the psychological vulnerability of young people and the incomplete development of their minds as compared to adults, but no distinction is typically made by police during interrogations. Among the most popular interrogation methods is the Reid Technique, which includes behavioral analysis aimed at discerning guilt through body language and evasive speech, though these cues have little efficacy in this task, especially with juveniles. The United Nations Convention of the Rights of the Child also illuminates the psychological differences between adults and children -- declaring life imprisonment as inappropriate for juveniles -- and all nations in the world save two, the U.S. and Somolia, have agreed to the treaty.

The context for the errors made by law enforcement and attorneys during the Central Park Jogger Case were indicative of the cresting wave of punitiveness for juvenile crimes that described the late 1980s and 1990s. Before the end of that decade, nearly half of all court-involved juveniles were sentenced to some form of incarceration -- a great many for small crimes: misdemeanors or probation violations. Across the United States, each year 200,000 minors are tried as adults so as to empower judges and prosecutors to levy hasher sentences in order to keep young people confined for a longer period of time.

Since 1970 the number of people imprisoned in the U.S. has increased by 600 percent, from less than 330,000 to more than 2.3 million people today, with the fastest growing demographic being women. At the same time the prison system has shifted its focus away from rehabilitation and has instead become a warehouse for stigmatized sections of the population that severely limits their abilities to re-acculturate following release. The racial disparities are well-documented.

All of this comes at a tremendous cost both financially and to public safety as the most significant indicator for arrest is previous incarceration. It cost New Yorkers $3.7 billion in 2010 to pay for their prison system -- not counting for central-administration costs such as department of corrections employees benefits and pensions. With more than 2.3 million people behind bars and an additional five million under supervised release programs such as parole and probation -- which typically remove many of the rights granted to people who have not been court-involved, today the United States Criminal Justice System controls nearly as many people as are imprisoned in the penal institutions of every other nation in the world combined (9.9 million). By no statistic are we the safest nation in the world.

Meanwhile our perception of safety is so skewed by sensational stories such as the case of the Central Park Five and conscious and unconscious racial animosity that we are blinded by what is actually most likely to do us harm. We are most fearful of a mythologized criminal -- a young black man, selling drugs and gang-affiliated who will kill us as we walk in the street -- and our entire criminal justice calculus is based on this largely unrealistic fear. Yet of the 14,831 homicides committed in 2007, just 3.9 percent were drug-related -- roughly 600 people -- compared to the 10,000 deaths in drunk-driving-related accidents, for example.

While NYPD officers, on-duty or off, are largely applauded for gunning down robbers and others who are carrying weapons, can you imagine the public getting behind a campaign for officers to shoot people suspected of drunk driving dead on sight? We have such general reverence for the police yet in New York City, without even mentioning their on-the-job crimes some of which are described above, more than 100 officers are arrested each year for crimes ranging from drug smuggling, gun-running, murder, and rape, according to the Internal Affairs Bureau. The department is so adverse to accountability that Kevin Boss, a white NYPD officer who killed 22-year-old Patrick Bailey on Halloween of 1997, was given back his gun and less than two years later was one of the four officers who murdered Amadou Diallo.

We allow these abuses to continue because we are either willfully ignorant or consciously or unconsciously willing to accept a certain amount of police and prosecutorial misconduct to protect our perception of safety as long as it is not at our expense. While the public tide is perhaps turning on issues such as stop and frisk and order-maintenance policing, generally speaking we've made a social agreement that we are alright with the lives of young men being ruined to buoy our perception of safety -- this is a price that we are willing to pay. In many ways The Central Park Five is a history lesson and cautionary tale of the types of police and prosecutorial misconduct that is possible without effective oversight or appropriate checks and balances to power. Unfortunately the NYPD and district attorney's office shown in the film have changed little since those days and we all will continue to pay a price for that.