Accounting for the Innocent but Imprisoned

While Arizona has only seen three exonerations from post-conviction DNA testing, one of those exonerated, Ray Krone, holds the distinction of being the 100th person exonerated from death row since 1976. Krone was sentenced to death row for the 1991 murder of Kim Ancona, an acquaintance who worked at a Phoenix bar that Krone frequented. Ancona was raped and murdered shortly after the bar closed on December 29, 1991, and circumstantial evidence, in tandem with an expert witness who had supposedly matched a sample of Krone’s teeth marks to the teeth marks found on Ancona’s body, resulted in Krone’s conviction.

A 1994 retrial convicted Krone again on the same evidence, but Krone was given a lighter sentence: 46 years in prison. The appeals continued until 2002, when Krone’s attorney was able to use DNA evidence to convince an appeals court that Krone was innocent. It’s hard to call someone who spent a decade of his life fighting a wrongful conviction lucky, but in some ways he was. Witness to Innocence, an organization that empowers ex-death row prisoners in the movement to abolish the death penalty, summarizes the unusual circumstances that enabled Krone’s exoneration: “Unlike nearly every other prisoner on death row, he had financial support from his second cousin, Jim Rix. Jim personally spent more than $100,000 to pay Ray’s legal fees. Ray also had the benefit of DNA evidence, which is available in only about 15 percent of cases.” Krone’s story provides one example of how unusual it is for wrongful convictions to be reversed–and why.

In Mother Jones last December, an article asked rhetorically in its title, “How Many Innocent People Are in Prison?” The answer is that no one is really sure. According to the Innocence Project, “the few studies that have been done estimate that between 2.3% and 5% of all prisoners in the U.S. are innocent.” In a nation that imprisons people at a rate four times the global average, that amounts to 46,000 to 100,000 people. But as Mother Jones explains, that number is likely too small to reflect the reality of the wrongfully incarcerated. Most of the wrongfully incarcerated don’t have the resources–or even the willingness–to appeal. “Because the average time from conviction to exoneration is about 13 years, only those sentenced to serious crimes with decades-long prison terms are likely to even bother undertaking the long, arduous, and resource-intensive process of clearing their names.”

Ray Krone’s case has often been cited as an example of the eagerness on the part of law enforcement to see someone convicted, especially in the case of capital crimes, even if the evidence against that person is weak. Capital crimes are often the focus of studies that look at the number of wrongfully convicted people in U.S. prisons, but a broader view is needed–though equally elusive. As a writer for Reason magazine argued, “The Innocence Project cites a study by Seton Hall’s D. Michael Risinger that puts the percentage of innocents in prison at 3 to 5 percent. But that study looked only at capital crimes, and there’s yet more debate over whether data gleaned from those accused of crimes that are eligible for the death penalty would translate into higher or lower wrongful conviction rates for those accused of lesser crimes.”

Looking at lesser crimes, especially drug crimes, we find more reason for alarm. Last year a New York court heard testimony from Stephen Anderson, a former narcotics detective who admitted, “As a detective, you…have a number to reach while you are in the narcotics division,” a number reached by “taking someone who was seemingly not guilty of a crime and laying the drugs on them.” Anderson added, “It was something I was seeing a lot of, whether it was from supervisors or undercovers and even investigators.”

Downstream from law-enforcement officers, many of whom are pressured to meet arrest quotas, is what one legal blog dubbed the Plea Bargain Assembly Line. Public defenders are commonly overworked, handling hundreds of cases annually. The result, according to Mother Jones, is that “Nineteen out of twenty, or 95 percent, of convictions in the US are by plea bargain.” The number of innocents in that 95 percent can’t be ascertained, since no evidence is brought to trial.

As if that weren’t enough, those behind bars might see their incarceration extended as a consequence of fabricated or exaggerated charges. In “Bring Us Your Chained and Huddled Masses,” a chapter in the edited volume Boob Jubilee: The Cultural Politics of the New Economy, journalist Christian Parenti looked at Crescent City, California, and the surrounding county of Del Norte, where corrections is the biggest industry, thanks to “the sprawling $277 million Pelican Bay State Prison,” which puts “more than $90 million a year into the local economy.” “According to research by California Prison Focus (CPF),” writes Parenti, “even minor disciplinary infractions at Pelican Bay, such as spitting on guards or refusing to return a meal tray, are routinely embellished and prosecuted as felony assault.” Those charged often face citizen jurors who are related to people employed by, or profiting from, the corrections industry. Furthermore, local defense attorneys shared stories of how prison officials and beneficiaries of the prison industry used their leverage to prevent effective legal defense of inmates. Defense attorneys with a record of too many wins saw their appointments disappear. Authorities instead sought what one attorney called “guaranteed loser lawyers.”

Searching for the answer to how many innocent people are imprisoned, we run into a lot of dead ends where evidence can’t be found. But along the way it’s easy to come to the conclusion that what can’t be quantified is still cause for considerable concern. At every step, from arrest to conviction to appeal, tens of thousands–at the very least–are caught in a system that is too zealously punitive and insufficiently judicious.

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