"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Thursday, August 03, 2006

Feige: Justice System 99.5% Accurate

In a Boston Globe piece, the seemingly ubiqitous David Feige of Indefensible fame, a death penalty abolitionist and all-around apologist for the criminal class, took Josh Marquis, a prosecutor from Oregon, to task for writing an article, later cited by Justice Scalia in Kansas v. Marsh, wherein Marquis argues that claims of wrongful convictions of actually innocent defendants are grossly exagerrated.

Although Marquis' article is much broader than the statistical argument that bothers Feige, Marquis' basic point on the numbers is this: a study on exonerations claimed to find 340 exonerations nationwide druing a 15-year period. Marquis grants that and raises the number by a factor of 10 for purposes of argument: hence, he assumes the real number of wrongful convictions of actually innocent defendants is 4,000. Given the 15 million convictions obtained during the time frame of the study, the resulting error rate is 0.027%, or stated differently, the percentage of correct convictions is 99.973%

Feige claims that Marquis is disingenous because he uses the incorrect comparison. According to Feige, what Marquis should compare is the number of exonerations to the number of cases where guilt was actually contested. In the other cases, guilt was not at issue, so those cases should be excluded from the analysis. Feige goes on to argue that of the 15 million cases referenced by Marquis, 14.25 million were pleas, not contested trials.

Using the 750,000 figure (contested trials where guilt was at issue), instead of the 15 million figure of all convictions, Feige reasons that the error rate becomes not 3 in 10,000, but 50 in 10,000.

Feige also complains that the exonerations usually only come in murder or rape cases, not in the far more routine cases of drug possession or distribution, bad check cases, or the like.

A couple of things jump out immediately: first, the exoneration study cited by Marquis found exoneration for all types of felonies, not just murder and rape. Secondly, Marquis quite generously inflated the number of exonerations by a factor of ten to account for this potential problem, even though there is really no empirical evidence whatsoever that the rate of exoneration would even come close to Marquis' assumed level. So Marquis' generous assumptions about the true rate of exoneration (a number, after all, that can never be known with precision) bolster the strength of his argument.

Moreover, Feige's complaint that the total number of 15 million convictions is not the correct figure to use for comparison is faulty. If the question at hand is: "how well does the justice system identify and hold accountable the guilty," then in fact we want to know of all convictions, how many are untrustworthy. The guilty pleas are relevent to answering that question, because they tell us that the system has correctly identified and held accountable the guilty party.

If however the question is "how often do factually innocent people who contest their guilt or innocence get convicted," then Feige's adjusted numbers are the relevant ones.

So what do we conclude from this exercize? Even if we accept Feige's numbers as he posits them, here is the percentage of wrongful convictions:

50 in 10,000, or 1 of every 200, or 0.5%
So where Marquis and Scalia come up with an error rate of 0.027%, Feige, asking a different question, by his own reckoning places the rate at more like one half of one percent, or, put differently, Marquis finds the system to work in 99.973% of the cases, Feige finds it accurate in "only" 99.5% of the cases.
Of course, what Marquis, Feige, the readers of this blog, and all people agree about is that "imprisoning citizens for crimes they didn't commit is a tragic injustice whether it is freakishly improbable or terrifyingly commonplace." Feige should know, since he tells in his book of representing people he thinks were innocent who he helped plead guilty notwithstanding their purported innocence.
Our system, moreover, is not, despite the popular myth to the contrary, built on the premise of "better that 10 go free than convict the one innocent" (an error rate of 10%, by the way, much higher than anyone posits for our system). The burden on the government is not that they prove guilt beyond any doubt, but only beyond a reasonable doubt. Like it or not, our system does, and always has, allowed for the possibility of error, while taking every reasonable precaution to minimize it. If the standard were proof beyond any doubt, many guilty criminals would go free, a trade off society has never been interested in making.
Given this inherent possibilty of error allowed by our system, a rate such as Feige's 0.5% is remarkable. It certainly does not suggest Feige's dour picture of a system in collapse and in need of drastic reform, which one suspects in Feige's vocabulary means more protections for criminals
and an easier job for criminal defense lawyers like himself; or, in simpler terms, more criminals on the streets.
[Sorry, there's some type of format error affecting my "return" function to separate paragraphs]


Anonymous said...

So out of 1050 executions, 6 were innocent? That's fine I suppose unless you're one of those 6 or their families.

Tom McKenna said...

Nice try, but as you well know from reading this blog, exactly ZERO innocent people have been shown to have been wrongly executed despite a desparate and detailed search by the abolition lobby.

What Marquis and Feige are disputing are merely percentages. I'm sure you know that if anything, given all the extra legal and procedural protections, the direct appeals, the habeas corpus petitions, the media and special interest group scrutiny, the political considerations, it would be a truly remarkable thing and certainly less than even a .5% occurence that a factually innocent person would be executed.

Anonymous said...

Tom, I know how difficult it is to argue nuance on this blog, but here goes.

First of all, if there is any political pressure, there is political pressure to execute. People like executions, because it serves to vindicate just about every single interest in criminal justice. Even if they are not a real deterrent to crime, the addition of a single fried person, makes it more of a deterrent to crime then it was before.

Second of all, I think you (and perhaps your opponents, too) are making a fundamental error about the nature of our justice “system.” “Guilt” and “innocence” are not shorthands for factual scenarios. They are legal concepts which are determined after a process.

For example, a person is “not guilty” because 1) he has not been tried of a crime; 2) a trial resulted in acquittal; or 3) he asserted an affirmative defense. In all of these scenarios he might actually have “done it” but our system of justice doesn’t care about that. We care about making the process as fair as possible, going so far as to engineer the process to keep evidence out which the cops manufacturer or forge, is unreliable, or was itself was obtained illegally.

On the other hand a person is “guilty” if he 1) is convicted of a crime; or 2) he pleads guilty. This doesn’t mean that he “did it.” He may have been convinced pasted on incorrect testimony, erroneous evidence, or by a biased fact-finder who would have convinced him anyway. Likewise, he may plead guilty because he is being kept in jail for a long period of time and would do anything to avoid the abuse that occurs in prisons. (People in certain DAs offices will joke about prison rape making people plead guilty, but I know that your office is above all that. If they were not, then they are worse than Hitler.). There are other reasons that people might plead “guilty” (such as avoiding a trial or not understanding), but I will set these aside, having shown a couple of examples.

“Exonerations” occur when somehow someone finds something “defective” in the process. Essentially, this demands that the process switch a legal conclusion. This doesn’t mean that the person did not “do it.” It just means that there was a flaw. Perhaps a very serious flaw. Indeed, even if prosecutors manufacturer evidence and demand that witnesses perjure themselves, and even torture people to obtain confessions (all of which have been done at some point), the person still might have “done it.” The question remains whether he “deserves” to be punished.

The problem is that when people speak of “erroneous” convictions or even “erroneous” exonerations, they leap over the question of what “deserves” means. This is a very deep legal and philosophical issue. To many (including my former colleagues), “deserve” can be interpreted liberally because most poor people (who make up the bulk of the non-lawyer participants in the criminal justice system) probably did something bad at some point, regardless of whether a formal proceeding is held to punish them. To others, they seek more specific justice, which does not really right any wrongs with society.

So, depending on which views you take of these issues, you can come out with pretty much any statistic you want. If you determine that people who plead guilty are getting what they deserve, then the criminal justice system is working pretty well. If you only look at reversed convictions, then it is doing somewhat better. If you look at reversed convictions followed by habeas writs (which your boss, as I understand it, opposes) it doing a little worse, and finally, if you look at the number of people who claim to be erroneously convicted, or don’t deserve their fate, it is doing far worse.

Anonymous said...

"Nice try, but as you well know from reading this blog, exactly ZERO innocent people have been shown to have been wrongly executed.."

I know no such thing o wise one. I do know that the DPIC Innocence List stands at 123. Now, because you'll attack them as a bunch of liberals, I'll be generous and knock 30% off that figure, bringing it to 87. 87 exonerations for 1050 executions means that 8 peoople are exonerated for every 100 executed or an 8% error rate.

Tom McKenna said...

Well, anon, if you give me the name and circumstances of the factually innocent person who was executed, I will post it prominently. But as you should know, if that person had existed, we would all know his name because anti-death penalty activists would never let us forget it.

As to your statistical breakdown, it does not prove that any innocent person has been executed. It shows that for a variety of reasons, be it factual innocence, new evidence shedding doubt on guilt but not establishing innocence, or legal error in the trial (which is what the DPIC includes as "exoneration"), a capital defendant was commuted to life imprisonment or pardoned.

See, the system works.

Anonymous said...

Okies. We can start with James Adams in Florida and take it from there. Oh this can go on F-O-R-E-V-E-R.

Anonymous said...

By the way, isn't it interesting that the death penalty is the one part of the government that is flawlessly efficient?

Anonymous said...

While I think that government is nothing but big bureaucracy and bureaucrats that are stupid and always make mistakes, when it comes to prosecutors making charging decisions, and judges affirming death sentences, they are 100% accurate. To claim otherwise undermines democracy and supports terrorism.

Also, the cops who let people get away with doing 110 because they have “PBA” cards are not making mistakes. They are just letting people violate the law because they are corrupt. Not making mistakes. Just corrupt. It is okay.

BananaJunior said...

Tom, why concentrate so hard on wrongful convictions resulting from a trial, which all death penalty cases have anyway? That's the tip of an iceberg.

What I get out of Feige's writings is a system where people get arrested, sit in jail, and are then offered the choice to stay in jail longer, the more they assert their innocence the longer they'll sit barring extreme facts on their side and good lawyering - or they can confess to the crime and get out that day.

This isn't all cases, but maybe a lot of them, maybe more than a lot?

As a member of this civilization, I'd like to know what the heck we get out of this system. I don't know if innocent people are confessing, or not. Don't much care, either. I just want to know what possible benefit I, as a citizen and resident of the USA, get out of it.

Anonymous said...

Cameron Todd Willingham in Texas?

Josh said...

Tom is right, as always.
NOBODY disputes the fact that the justice system screws up. There are people who did not do it who ended up on death row. Their number is extremely small and if the argument is that the error rate not just for death but any severe sanction can't be anything but ZERO then we have to abandon our justice system.
Anyone who works in the system - prosecutor or defender - is convinced there are LOTS of problems, so no sane person says everything is just fine. (Many of the problems involve letting very guilty people go for ridiculous reasons).
The question Scalia answered was a rant by four justices in the Marsh decision who chucked legal arguments in their dissent. His point, and mine, and Tom's, is that we should be spending the most effort looking at things that are seriously NOT working. There are plenty of valid objections to the death penalty that have NOTHING to do with innocence.
In fact read abolitionists David Dow or the law prof siblings Steiker, who caution their fellow abolitionists that going down the innocence argument is a dead end.