Where’s the Justice in Our Criminal Justice System?

I‘ve been listening to a podcast I wish I could have heard while in high school—I probably would have gone to law school earlier than I did. Listed by Rolling Stone magazine as one of the 10 podcasts everyone should follow, “Actual Innocence” was started by Brook Gittings, a social worker who—after watching the Netflix series “The Making of a Murderer”—realized how little she knew about our judicial system. Her desire to learn more led her into the world of wrongful convictions, which has now become the driving force behind her podcasts. Each episode tells the story of a person who has served time in the system for a crime they did not commit. Actual Innocence gives the uninitiated a view of our criminal justice system that won’t be found on CSI or Law & Order.

Like Gittings, most Americans have little to no direct contact with the judicial system. With the exception of minor traffic violations, divorce proceedings, or an occasional dispute in small claims court, what they think they know about the judicial system has come to them through the movies or television dramas. Nevertheless, if asked, the average Joe would probably say that our system is just and fair.

We are reared to believe that ours is a nation of laws. That the U.S. criminal justice system is blind to race, religion or station in life. Unless you are an attorney, a police officer, law student, or are in some other way associated with the law, you probably don’t know that one out of nine people on death row has been exonerated since the introduction of DNA evidence—or that the overwhelming majority of people serving time for a criminal offense in the United States never had a trial.

As much as 97% of federal criminal cases end with a plea bargain, which means the defendant and the prosecution struck a deal—a guilty plea in exchange for a lighter sentence. This business of having your day in court as depicted on TV and in the movies is largely fiction. Our criminal justice system today is almost exclusively a system of plea bargains—no trials, no juries, and no discovery with defense counsel and judges having little to no say.

What was designed to be one of the greatest assets of our criminal justice system—the discovery process with a trial by jury—is largely a relic of the past. And the system it was supposed to support has increasingly become a predatory one or, as famed defense attorney Bryan Stevenson says, “We have a system of justice that treats you better if you’re rich and guilty than if you are poor and innocent.”

In fact, the late Supreme Court Justice Antonin Scalia believed that actual innocence was not a strong enough reason to overturn a conviction, even in the face of a death sentence. He once said that the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that he is ‘actually innocent’ is not a legal basis to overturn the conviction or, in other words, not enough reason to stop an execution. So, it appears we’ve come to the place where actual innocence can be treated as if it were irrelevant.

This jaw-dropping truth stands in sharp contrast to the protections most Americans believe are enshrined in the Bill of Rights of the U.S. Constitution. Surely the Founding Fathers did not intend to create a system that results in tens of thousands of innocent people incarcerated annually and—in a few cases—being put to death.

Our system is so bloated and so prone to mistake and frankly, prosecutorial misconduct, that today there are enough people convicted of a crime who were later determined to be wrongfully convicted that they have an annual conference. In 2016, one such gathering, the Innocence Network Conference held in San Antonio, attracted 500 attendees.

In a piece published by Mother Jones magazine titled, “How Many Innocent People Are in Prison?” writers Beth Schwartzapfel and Hannah Levintova admit that answering that question definitively is almost impossible. But they say,

“Extrapolating from the 281 known DNA exonerations in the US since the late 1980s, a conservative estimate is that 1 percent of the US prison population, approximately 20,000 people, are falsely convicted.”

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Several studies by respected institutions support this estimation—some believe the number is higher. So the question is what can be done?

The bullets below are a small sample of suggestions I’ve found searching the web. Using sites like the Equal Justice Initiative, the Innocence Project, the Sentencing Project, and the Prison Policy Initiative I cobbled together a small sampling of actions average people can take: