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Protecting the Innocent in New York: Moving Beyond Changing Only Their Names

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Protecting the Innocent in New York: Moving Beyond Changing Only Their Names 07 ACKER 9/23/2010 6:51 PM PERSPECTIVES PROTECTING THE INNOCENT IN NEW YORK: MOVING BEYOND CHANGING ONLY THEIR NAMES James R. Acker* Catherine L. Bonventre** I. INTRODUCTION New York courts generated more than forty thousand felony convictions in 20071 and an additional 155,746 misdemeanor convictions.2 Roughly sixty-two thousand individuals are presently incarcerated in New York prisons3 and many more are in jail.4 Some of them are innocent. It is impossible to know precisely how many and who they all are. But there is no disputing that wrongful * Distinguished Teaching Professor, School of Criminal Justice, University at Albany; J.D., Duke University; Ph.D., University at Albany. ** Ph.D. student, School of Criminal Justice, University at Albany; J.D., Albany Law School; M.S., Forensic Molecular Biology, University at Albany. 1 NEW YORK STATE DIV. OF CRIM. JUSTICE SERVS., DISPOSITION OF ADULT ARRESTS: NEW YORK STATE (2009), available at http://criminaljustice.state.ny.us/crimnet/ojsa/dispos/nys.pdf [hereinafter NEW YORK STATE CRIME STATISTICS]. The New York State Division of Criminal Justice (―The Division‖) reports that 113,183 felony arrests resulted in convictions during 2007, and 35% of the convictions were for felonies—a total of 39,258 felony convictions. Id. In addition, 230,309 misdemeanor arrests resulted in convictions during 2007, and 0.7% of the convictions were for felonies—a total of 1,530 felony convictions. Id. Thus, 39,258 + 1,530 = 40,788 felony convictions. 2 Id. The Division reports that 230,309 misdemeanor arrests resulted in convictions during 2007, and that 47% of the convictions were for misdemeanors—a total of 108,151 misdemeanor convictions. Id. Additionally, 113,183 felony arrests resulted in convictions during 2007, and 42% of the convictions were for misdemeanors—a total of 47,595 misdemeanor convictions. Id. Thus, 108,151 + 47,595 = 155,746 misdemeanor convictions. 3 HEATHER C. WEST & WILLIAM J. SABOL, PRISON INMATES AT MIDYEAR 2008—STATISTICAL TABLES 3 (2009), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/pim08st.pdf (last visited Apr. 25, 2009) (reporting U.S. Department of Justice statistics indicating that 62,211 prisoners were under the jurisdiction of New York State correctional authorities on June 30, 2008). 4 NEW YORK STATE CRIME STATISTICS, supra note 1. The New York State Division of Criminal Justice reports that 74,593 individuals were sentenced to jail, jail time served, or jail and probation following misdemeanor arrests in 2007. Id. In addition, 39,004 individuals were sentenced to jail, jail time served, or jail and probation following felony arrests in 2007. Id. Thus, 74,593 + 39,004 = 113,597 misdemeanor and felony arrestees received some type of jail sentence during 2007. 1245 07 ACKER 9/23/2010 6:51 PM 1246 Albany Law Review [Vol. 73.4 convictions occur. Even if guilty verdicts are usually, or almost always reliable, converting estimated error rates into absolute numbers produces a staggering total of wrongful convictions. An accuracy level as high as 99.5%, which by some projections is decidedly optimistic,5 would still mean that nearly one thousand innocent New Yorkers a year are convicted of crimes6 and in excess of eleven thousand of the nation‘s incarcerated population (including well over eight hundred in New York) are in prison or jail for crimes they did not commit.7 The tragedy is compounded because not only do innocent people suffer the devastating consequences of wrongful convictions, but actual offenders escape justice, perhaps to prey on additional victims.8 Errors, inevitable in all human endeavors, are both predestined and tacitly acknowledged in systems of criminal justice that need negate only reasonable doubts—not all doubts—to support convictions.9 5 A recent survey of criminal justice professionals (police, prosecutors, defense attorneys, and judges) in Ohio revealed that roughly one quarter (24%) of the respondents estimated that wrongful convictions occur in 1% to 3% of cases throughout the United States resulting in conviction, ―and an additional 40.7% of the respondents [estimated that wrongful convictions] occur in more than 3% of all cases.‖ Robert J. Ramsey & James Frank, Wrongful Conviction: Perceptions of Criminal Justice Professionals Regarding the Frequency of Wrongful Conviction and the Extent of System Errors, 53 CRIME & DELINQ. 436, 453 (2007). See C. RONALD HUFF, AYRE RATTNER & EDWARD SAGARIN, CONVICTED BUT INNOCENT: WRONGFUL CONVICTION AND PUBLIC POLICY 60–62 (1996) (discussing CRJ officials‘ estimate of 0.5% error rate and translating into absolute numbers); cf. Samuel L. Gross & Barbara O‘Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases, 5 J. EMPIRICAL LEGAL STUD. 927, 947 (2008) (estimating 2.3% as rate of wrongful death sentences); see also D. Michael Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. CRIM. L. & CRIMINOLOGY 761, 780 (2007) (estimating between 3.3 to 5% wrongful conviction rate in capital murder-rape cases—though these might be especially prone to error). 6 Using the 2007 New York State Division of Criminal Justice conviction figures, a 99.5% accuracy rate (or an error rate of 0.5%) would produce approximately 204 wrongful felony convictions (.5% of 40,788 = 203.94) and approximately 779 wrongful misdemeanor convictions (.5% of 155,746 = 778.73), or a total of 983 wrongful convictions. See supra notes 1–2 and accompanying text. 7 According to Bureau of Justice Statistics data, 2,396,002 individuals were incarcerated in federal or state prisons or in local jails at midyear 2008. U.S. Dep‘t of Justice, Bureau of Justice Statistics, Total Correctional Population (2009), http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=11 (last visited Apr. 25, 2010). If New York incarcerated an estimated 62,211 people in its prisons and an additional 113,401 in its jails, its contribution to the national total of innocent people serving prison and jail sentences using the estimated wrongful conviction rate of 0.5% would be approximately 878. See supra notes 3–4 8 See infra note 485 and accompanying text. 9 Victor v. Nebraska, 511 U.S. 1, 18 (1994) (approving jury instruction defining proof beyond a reasonable doubt that included, in part, this caveat: ―‗absolute certainty . is not required. You may be convinced of the truth of a fact beyond a reasonable doubt and yet be fully aware that possibly you may be mistaken. .‘‖); In re Winship, 397 U.S. 358 (1970) (holding that due process requires proof beyond a reasonable doubt of all elements of the 07 ACKER 9/23/2010 6:51 PM 2010] Protecting the Innocent in New York 1247 In June 2008, upon assuming the presidency of the New York State Bar Association (―NYSBA‖), Bernice Leber appointed ―a blue ribbon Task Force to find ways to prevent wrongful convictions‖10 in the state. The task force promptly convened and over the next several months studied known cases of wrongful conviction in New York, examined other states‘ experiences, issued a preliminary report,11 and received testimony at two public hearings.12 It released its final report on April 4, 2009.13 Less than a month later, New York Court of Appeals Chief Judge Jonathan Lippman announced his creation of a task force that similarly would focus on the causes of wrongful convictions in the state. He requested a report, including recommended reforms, by December 1, 2009.14 By some estimates, New York is one of the nation‘s leaders in convicting innocent people. This dubious distinction is perhaps not surprising in light of the state‘s large population and high volume of criminal cases. It also is home to organizations such as the New York City-based Innocence Project, which actively investigates possible wrongful convictions,15 and to journalism and media charged offense in juvenile delinquency adjudications involving deprivation of liberty as well as in criminal cases). See generally ALAN M. DERSHOWITZ, REASONABLE DOUBTS: THE O.J. SIMPSON CASE AND THE CRIMINAL JUSTICE SYSTEM 34–48 (1996) (discussing the criminal law‘s requirement of ―proof beyond a reasonable doubt‖ and how the adversarial process differs from an objective search for truth, and application of those concepts in the context of the trial of O.J. Simpson for murder); BRIAN FORST, ERRORS OF JUSTICE: NATURE, SOURCES, AND REMEDIES 57–65 (2004) (estimating frequency of erroneous convictions, as well as erroneous acquittals, applying different levels of certainty to interpretation of ―proof beyond a reasonable doubt‖); Daniel Givelber, Meaningless Acquittals, Meaningful Convictions: Do We Reliably Acquit the Innocent?, 49 RUTGERS L. REV. 1317, 1364–68 (1997) (discussing implications of differing interpretations of proof beyond a reasonable doubt). 10 Press Release, New York State Bar Association, Bernice K. Leber Begins Presidency of Nation‘s Largest Voluntary State Bar Association (June 2, 2008), available at http://readme.readmedia.com/news/show/Bernice-K-Leber-Begins-Presidency-Of-Nation-s- Largest-Voluntary-State-Bar-Association/175265. 11 N.Y. STATE BAR ASS‘N TASK FORCE ON WRONGFUL CONVICTIONS, PRELIMINARY REPORT OF THE NEW YORK STATE BAR ASSOCIATION‘S TASK FORCE ON WRONGFUL CONVICTIONS (Jan. 30, 2009), available at http://www.nysba.org/Content/ContentFolders/TaskForceonWrongfulC onvictions/TFWrongfulConvictionsreport.pdf [hereinafter TASK FORCE PRELIMINARY REPORT]. 12 Hearing Before the New York State Bar Association Task Force on Wrongful Convictions (Feb. 13, 2009), available at http://www.nysba.org/AM/Template.cfm?Section=Home&CONTE NTID=25681&TEMPLATE=/CM/ContentDisplay.cfm; Hearing Before the New York State Bar Association Task Force on Wrongful Convictions (Feb. 24, 2009) [hereinafter Feb. 24 Hearing] (on file with author). 13 N.Y. STATE BAR ASS‘N TASK FORCE ON WRONGFUL CONVICTIONS, FINAL REPORT OF THE NEW YORK STATE BAR ASSOCIATION‘S TASK FORCE ON WRONGFUL CONVICTIONS (Apr.
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