ARTICLE

July 16, 2006
SECTION: IDEAS, page E2
Innocence by the Numbers; Is Justice Scalia's Faith in the Criminal Justice System Based on the Fuzzy Math of the Death Penalty Lobby?
By David Feige

ALAN NEWTON LEFT PRISON last week after serving 22 years for a rape he didn't commit. Though eligible for parole for nearly a decade, he was repeatedly denied his freedom because he insisted on his innocence. Through repeated motions and letters from his prison cell, Newton relentlessly sought the DNA testing that eventually cleared him. But it took the New York City Police Department nearly a dozen years to locate that evidence-even though it was stored in the original evidence barrel the whole time-years Alan Newton spent in prisons like Attica and Sing Sing.

The Newton exoneration stands as a poignant rebuke to Justice Antonin Scalia's concurring opinion in the recent Supreme Court case of Kansas v. Marsh. In that death penalty decision, Scalia went far out of his way to attack what he termed the death penalty "abolition lobby." In his analysis, Scalia joined a growing chorus of death penalty proponents who claim that our criminal justice system is nearly perfect in adjudicating guilt and innocence. Indeed, Scalia devoted entire pages of his opinion to excoriating several of his fellow justices for succumbing to what he believes are unfounded fears of fallibility created by the extensive attention garnered by the exonerated.

A principal flaw in Scalia's argument is that it is grounded in misleading statistics from a pro-death penalty piece published on the op-ed page of The New York Times in January. In the piece, which Scalia both cites and quotes at length, Joshua Marquis, the district attorney of Clatsop County, Ore., and an oft-quoted spokesperson for the prosecutorial lobby, asserts that the conviction of the innocent is essentially unheard of in our system of criminal justice.

Citing a 15-year study of exonerations by Samuel Gross, a law professor at the University of Michigan, Marquis argues as follows: "Let's assume...that there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate 0.027 percent-or, to put it another way, a success rate of 99.973 percent."

Surely, Marquis suggests, when only a few out of every 10 thousand criminal defendants are innocent, and they have appeals and executive clemency to rely on, the criminal justice system is working as well as we could possibly hope. That argument, presaged in a law review article Marquis wrote in 2005, has driven the thinking and rhetoric of those who oppose criminal justice reform. With Justice Scalia's imprimatur, this flawed analysis is sure to take an even more prominent place in the criminal justice debate.

Unfortunately, Marquis has propounded a flawed analysis grounded in faulty, irresponsible arithmetic. Here's the problem: Comparing exonerations to felony convictions is like arguing that the Ford Pinto was safe because compared to the total number of automobiles sold in the United States, not many of them blew up. The proper way to determine the failure rate of the Pinto is not to use the total number of cars sold as the denominator, but rather the number of Pintos sold. Likewise, the denominator in Marquis's fraction shouldn't be the 15 million felony convictions over the past 15 years, but rather the number of similar cases in which innocence is actually disputed.

Marquis's most glaring error is his failure to acknowledge the fact that most felony arrests aren't contested. In fact, 95 percent of them are resolved by plea rather than trial. Thus in 19 out of every 20 felony cases, there is no contested issue of guilt and no real claim of error.

Only trials in which someone is convicted while maintaining his innocence should be considered in computing an error rate. Of Marquis's 15 million felony cases, 14.25 million were pleas. When the denominator in his fraction is changed from 15 million to 750,000, the error rate jumps from the arguably ignorable 3 in 10,000 to more like 50 in 10,000.

And Marquis's numbers become even more disturbing with further analysis. Because of the overwhelming demands involved in reinvestigating a crime with an eye toward exoneration, it is almost exclusively defendants sentenced for rapes and murders whose cases get scrutiny from groups like the Innocence Project, the nonprofit organization that helped free Alan Newton. The chances that a drug defendant is going to interest them are virtually nil. Thus the only people who have any meaningful access to the possibility of exoneration are a tiny subset of criminal defendants. Murders constitute only 0.8 percent of all felony cases, and rapes less than 2 percent. In other words, less than 450,000 of Marquis's 15 million felony convictions came in cases where the defendant has had a real shot at exoneration.

It is true that murder cases go to trial far more often than run-of-the-mill drug sales or check forgeries. In fact, some 44 percent of murder cases actually go to trial, with an average conviction rate of about 85 percent. But even taking this into account, of the 150,000 murder cases in Marquis's 15 million, only 66,000 homicide defendants maintained their innocence through a trial, of which just over 56,000 were convicted. Using similar trial and conviction rates for rapes yields somewhere south of 200,000 contested convictions in serious cases. In the final analysis, Marquis's error rate is off by orders of magnitude-his vision of a virtually error-proof system is simply unsupported by the numbers.

As Alan Newton's wasted years clearly demonstrate, imprisoning citizens for crimes they didn't commit is a tragic injustice whether it is freakishly improbable or terrifyingly commonplace. But as long as the opponents of change refuse to acknowledge the scope of the problem, much needed reforms will remain-like the exonerating evidence in Mr. Newton's case-unexamined. The tragedy here isn't merely questionable scholarship, it's the degree to which the prosecutorial lobby has latched on to what appears to be advocacy masquerading as statistical argument. That Justice Scalia has adopted this reasoning wholesale, seemingly without critical analysis, is merely further proof that when it comes to criminal justice reform, it is hardly the zealousness of the abolitionist movement we have to fear.

David Feige was a public defender in the Bronx and is the author of "Indefensible: One Lawyer's Journey into the Inferno of American Justice," published last month by Little, Brown & Co.