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Victory for Justice?

Last month, the Columbus Dispatch published an editorial hailing last year’s record number of exonerations of those wrongfully convicted of crimes, including six in Ohio, as “a victory for justice.”  It’s a victory for them, perhaps, but not for justice.  

Those six spent a collective 173 years in prison for crimes they didn’t commit.  173 years not seeing their children grow and parents age.  173 years without light and liberty.  173 years of stigma, lost jobs, lost family and friends.  173 years wrongfully taken. 

Sure it’s a victory of sorts that they’re finally free.  But to a man, they’ll tell you it’s not enough.  They’d trade their new-won freedom in a minute for never having been wrongly charged, wrongly convicted, wrongly imprisoned. 

Then there is the loss to society. While we punished the innocent, the guilty went free.  The true criminals remained on the street. 

More important, these exonerees exemplify a larger injustice.  We may decades late, free a few people.  We pat ourselves on the back, send out press releases, stand before the cameras, and declare that the system works.  It’s misleading at best, deceitful at worst. 

Nobody knows know how many innocent people are hauled into court every day to face charges from petty to capital.  We don’t know how many enter plea bargains to crimes they didn’t commit fearing the downside of conviction at trial.  We don’t know how many plead to get time served because they cannot afford bond and just want to go home. 

Nor do we know how many are tried, convicted, and imprisoned – or sentenced to die – because evidence was withheld or snitches lied or lab workers were unqualified or fabricated results.  We don’t know how many confessed falsely or were identified by honest but mistaken eyewitnesses.  And we do not know how many were convicted because the jury simply got it wrong.

Every human endeavor has an error rate.  But the consequences of the justice system’s errors, in lost opportunity, lost family, lost years, and yes – because the capital system is imperfect - lost lives, demand more than celebrating six long-delayed exonerations. 

Yet we do not devote the resources to preventing and rooting out mistakes.  We do not hold accountable those responsible when the errors are not mere human failings.  Powerful, functioning conviction integrity units are a start.  Greater availability of – and prosecutor willingness to allow - DNA testing is a start.  But we need to do much more. 

We might start by honoring fairness over finality, by removing procedural hurdles to discovering and presenting evidence of innocence.  We might begin by recognizing the constitutional right to effective assistance of counsel, as more than a right only to marginal competence and then only on proof that the marginal lawyer would likely have gotten a better result. 

With rare exceptions, we have spent thirty years making it harder to prevent, find, and correct errors.  That we occasionally catch them anyway is less a victory for justice, than an indictment of our criminal justice system.

Jeffrey M. Gamso,
President, OACDL