How Many Innocent People Are In Prison?

by Ed Brayton

That's the very difficult question that Radley Balko attempts to answer in an essay at Reason. He begins by noting why this is so difficult to calculate:

Calculating the percentage of innocents now in prison is a tricky and controversial process. The numerator itself is difficult enough to figure out. The certainty of DNA testing means we can be positive the 250 cases listed in the Innocence Project report didn't commit the crimes for which they were convicted, and that number also continues to rise. But there are hundreds of other cases in which convictions have been overturned due to a lack of evidence, recantation of eyewitness testimony, or police or prosecutorial misconduct, but for which there was no DNA evidence to establish definitive guilt or innocence. Those were wrongful convictions in that there wasn't sufficient evidence to establish reasonable doubt, but we can't be sure all the accused were factually innocent.

But there should be little doubt that the number of exonerations brought about by DNA testing is only the tip of the iceberg:

Most prosecutors fight requests for post-conviction DNA testing. That means the discovery of wrongful convictions is limited by the time and resources available to the Innocence Project and similar legal aid organizations to fight for a test in court. It's notable that in one of the few jurisdictions where the district attorney is actively seeking out wrongful convictions--Dallas County, Texas--the county by itself has seen more exonerations than all but a handful of individual states. If prosecutors in other jurisdictions were to follow Dallas D.A. Craig Watkins' lead, that 250 figure would be significantly higher.

He then blasts Justice Scalia's absurd reasoning in claiming that there are very few innocent people in prison:

If the numerator is tough to figure, the denominator is even more controversial. One of the more farcical attempts at writing off the growing number of DNA exonerations came in a concurring opinion that Supreme Court Justice Antonin Scalia wrote in the 2005 case Kansas v. Marsh. Scalia began by dismissing the idea that an innocent person may have been executed in America, explaining that if such a tragedy had occurred, "we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby."

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