What percent innocent?

Andrew L. Urban.

A former heavy duty senior detective friend of mine (now a security consultant with a caustic sense of humour) and I have a standing joke: when he mentions a convicted criminal he grins, saying to me, ‘He’s innocent, too, right?’ The joke began when talking about cases I was researching for my book, Murder by the Prosecution(Wilkinson Publishing), and names came up, like Gordon Wood. Jokes aside, it is pretty certain that a percentage of people convicted of serious crimes (here and internationally) are indeed innocent. The latest figures being quoted hover around 6% -7%.

“Everyone in jail’s innocent, right?” quips Bill Rowlings, CEO of Civil Liberties Australia, reporting for the CLA on November 25, 2018. “Well, 7% of murderers and rapists – 1 in 14 – probably are,” he writes.

“About 300 Australian women and men convicted of major crimes are in jail today – and for many years to come – who should be free. They are innocent.

“These are the findings of a three-year investigation into wrongful convictions worldwide by Civil Liberties Australia. It is impossible to find figures anywhere in Australia on the number of innocent people in jail. The best we can do is extrapolate – draw conclusions – from valid measurements made on robust information in reliable legal systems.”

Coincidentally, I was just watching the US made documentary,The Innocent Man; at the end of the 6th and final episode of which the producers claim that in the US, some 7% or 90,000 inmates are wrongfully convicted.

Rowlings refers to the UK’s Criminal Cases Review Commission, which over the past 20 years of its operation has found that 7% of the 10,000 cases it has studied in detail represent wrongful convictions; that’s about 700 individuals jailed for crimes they didn’t commit.

CLA’s report states :

“If you agree there’s the strong likelihood that, in a near-identical Australian system, an equivalent 7% of innocent people are likely to be in jail here, it simply comes to a calculation to figure out how many people that would be. A broad, very approximate measure can be derived this way:

  • there are about 40,000 people in Australian jails;
  • there are about 85,000 people in UK jails;
  • therefore, the number of similar innocent people in Australian jails is 40 dived by 85, then multiplied by the 700 the CCRC believes are innocent in the UK.

The figure – for innocent people in Australian jails for major crimes – comes to 329.

“If you take the lower, “actual” figure in May 2017 of formally-referred CCRC cases of 632, the division figure becomes 297.

“So, either way, there are about 300 people jailed for murder, rape and major offences in Australian jails today who are innocent.”

Rowlings calls for something to be done:”…there needs to be a major national study into why the legal-justice system in Australia is making so many errors, and into ways to improve competence and quality dramatically.

“Rather than this issue being ‘difficult’, it is in fact an opportunity: there has never – not ever – been a major investigation into the Australian justice system.”

We at wrongfulconvictionsreport.org agree; it could start by inviting lawyers (perhaps through the Law Society) representing prisoners who believe, after unsuccessful appeals, that they have been wrongfully convicted of a serious crime (murder, rape) to lodge a brief Notice to Submit their particulars. This raw list could be the basis to launch an investigation, possibly by the Law Reform Commission.

US criminologist Charles Loeffer at Penn University led a team of researchers that looked at wrongful convictions in the Pennsylvania prison population as a whole. They found that for capital crimes such as murder and rape, the percentage is between 6% – 8% – approximately. (The research team is currently analysing results from a recently concluded replication of the survey.)

Surveying an intake population of nearly 3,000 state prisoners in Pennsylvania, the researchers found that 6 % reported being wrongfully convicted, results the team published in the Journal of Quantitative Criminology in April 2018. This is one of the first estimates of its kind for the criminal-justice population as a whole.

Much of the fear that the inmates wouldn’t participate or provide accurate accounts dissipated at the study’s outset, when two-thirds took complete responsibility for their most recent crimes. Another quarter took at least partial responsibility. Just 8 % maintained that they had zero involvement in the most recent crime for which they were convicted, what Loeffler describes as “factual innocence.”

As for whether the rate is high or low, Loeffler sees both perspectives. “It’s a good question because it’s a hard question. Some people look at this and say, ‘Only 6 %? Alright, it’s working pretty well,’” he says. “Other people look at it and say, “6 %? That’s a lot of people.’ Both reactions are reasonable.”

 

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2 Responses to What percent innocent?

  1. Mary says:

    Wrongful convictions are a serious imposition on the person wrongfully convicted who has his or her former life taken from them and they have to adjust to a new, false life where they either maintain their innocence and suffer a loss of parole opportunities because of their innocence, or they have to participate in rehabilitation schemes that are totally inappropriate for them.

    The wrongful conviction also seriously impacts the family of the person. The family has already paid out enormous sums of money on legal representation and perhaps lost homes and assets in the process, but members are also deprived of the company and love of the convicted person and spend time and money visiting their loved one as well as anguish knowing their loved one is not as well cared for as he or she would be at home, particularly if the incarcerated person is elderly, sick or becomes elderly or sick. Simple things like haircuts, access to spiritual help in their own tradition, books of their own choosing, adequate space, adequate protection from heat and cold, suitable meals, and so the list could go on. If it became a high-profile conviction, then the family also suffers a stigma.

    And it should not be forgotten that the 7% wrongful conviction rate is only those still languishing in prison, because it does not include those who have had successful appeals against their convictions. It is difficult to get figures on successful appeals in Australia, but in 2012 “According to data from the Minnesota Judicial Branch, lawyers filed 816 criminal appeals last year. The national average is that 4 percent of those appeals succeed, compared to 21 percent civil cases that are overturned.” These were not Acquittals, but people who were granted another Trial.

    Perhaps one might ‘guesstimate’ 1% were finally cleared which would perhaps account for guesses by governments and bureaucracies that the wrongful conviction rate is low, or is only about 1% or less. But this still has to be added to the 7%.

    Australia needs statistics urgently so that the problem can be tackled properly.

    It particularly needs statistics on wrongful convictions arising out of the recent Royal Commission into Institutional Responses to Child Sexual Abuse because the claimants are usually significantly damaged and traumatised people remembering back over 20, 30, 40 and even 50 years who have a zeal to “protect future children” and the courts and lawyers seem to have no appreciation that they are not just dealing with how memory is laid down and retrieved, but they are dealing with confusion, reconstruction, perpetrator substitution, false memory, subjective memory, layering of traumatic memories over a life time which fuse with the memory of a person who may have chastised them or simply not been sympathetic in a particular place where they did not like being, eg a children’s home and so on as well as gossip/mythologising and suggestibility. The defendant’s memory may also be unreliable due to the ravages of time, stress of investigation/charging/waiting and illness.

    And yet a court relies on these two sources of unreliable memories and comes to a judgement based on the current attitude that “we believe the victims” even though an analysis of one Case Study at that Royal Commission showed that approximately one-third of people giving “evidence” named people who were not at that institution at the same time as the “victim” was there. The figure of one-third may even have been too low because it was not possible to find out when all the “victims” had been at that particular institution.

    We know that in Custody cases there is a wrongful allegation rate against husbands of about one-third and these women are similarly traumatised by their circumstances, have an excessive zeal and responsibility to protect their children, and often see evil where there is no evil.

    There is no reason to assume that from a psychological point of view, that these two groups of people would not have significant similarities that could produce false allegations. And that is without taking into account the possibility of outright lies.

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