The Republican Party, like Sisyphus, is again putting its shoulder to a boulder, hoping to make modest but significant changes in the Electoral College arithmetic by winning perhaps 12 percent of the African American vote. To this end, Republicans need to hone a rhetoric of skepticism about, and an agenda for reform of, the criminal justice system. They can draw on the thinking of a federal appellate judge nominated by Ronald Reagan.
In an article that has stirred considerable discussion since it appeared this past summer in the Georgetown Law Journal, Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit provides facts and judgments that should disturb everyone, but especially African Americans, whose encounters with the criminal justice system are dismayingly frequent and frequently dismaying.
Eyewitness testimony is, Kozinski says, “highly unreliable, especially where the witness and the perpetrator are of different races.” Mistaken eyewitnesses figured in 34 percent of wrongful convictions in the database of the National Registry of Exonerations. Fingerprint evidence, too, has “a significant error rate,” as does spectrographic voice identification (error rates up to 63 percent) and handwriting identification (error rates average 40 percent). Many defendants have spent years in prison “based on evidence by arson experts who were later shown to be little better than witch doctors.” DNA evidence is reliable when properly handled but is only as good as are the fallible testing labs.
“Much of what we do in the courtroom relies,” Kozinski writes, “on human memory.” But the more we learn about the way memories are “recorded, stored and retrieved,” the less confidence we can have that memories are undistorted and unembellished by the mind or external influences. And courts rarely allow expert testimony on memory.
The idea that at least confessions are reliable because “innocent people never confess” is refuted by the indisputable fact that they do “with surprising regularity.” They do for reasons ranging from a desire to end harsh interrogations, to emotional and financial exhaustion, and to coercive charging of multiple offenses made possible by the overcriminalization of life.
Kozinski says we know “very little” about how juries decide cases. “Do they assume that the presumption [of innocence] remains in place until it is overcome by persuasive evidence or do they believe it disappears as soon as any actual evidence is presented?” Do they actually distinguish between a “preponderance” of evidence, “clear and convincing” evidence, and evidence “beyond a reasonable doubt”? Research demonstrates that the person — the prosecutor — making a first assertion has a substantial advantage over those who subsequently deny it. In the courtroom, juries first hear from prosecutors.
Prosecutions are preceded by police investigations. Police, says Kozinski, have “vast discretion” about, among many other things, which leads to pursue and witnesses to interview. They also have opportunities “to manufacture or destroy evidence, influence witnesses, extract confessions” and otherwise “stack the deck against people they think should be convicted.” A woman spent 23 years on death row because of an oral confession she supposedly made during a 20-minute interrogation by a detective who Kozinski says was later shown “to be a serial liar.” The conviction of a man who spent 39 years in prison was based “entirely” on the eyewitness testimony of a 12-year-old who saw the crime from a distance, failed to identify the man in a lineup and was fed information by the police.
Kozinski suggests many reforms, including recording all interrogations of suspects, strictly limiting uses of jailhouse informants, allowing jurors to take notes and ask questions during the trial, and repealing three felony statutes a day for three years. He cites “disturbing indications that a non-trivial number of prosecutors — and sometimes entire prosecutorial offices — engage in misconduct.” Because a conscientious FBI agent revealed that Justice Department prosecutors concealed exculpatory evidence, we know that Alaska’s Republican Sen. Ted Stevens was wrongly convicted of corruption. Kozinski, who recommends establishing independent prosecutorial integrity units, thinks the Justice Department’s unit “seems to view its mission as cleaning up the reputation of prosecutors who have gotten themselves into trouble.” Kozinski favors abrogating absolute prosecutorial immunity.
Finally, he advocates careful study of exonerations, of which there have been 1,576 since 1989. And for every one “there may be dozens who are innocent but cannot prove it.” If the error rate is 1 percent, 22,000 innocent people are in prison. If the rate is 5 percent, the number is 110,000. Whatever the number, it almost certainly is disproportionately African American.