George Boardman: We’re finding more people behind bars who don’t belong there | TheUnion.com

George Boardman: We’re finding more people behind bars who don’t belong there

George Boardman
Columnist

George Boardman

California's district attorneys scored a rare victory last month in their battle to turn the tide on criminal justice reform when they got a Superior Court judge to reject Gov. Jerry Brown's attempt to get a sweeping prison and parole initiative on the November ballot.

Brown's initiative, which would make certain non-violent felons eligible for early parole, was filed in January as an amendment to a measure that would allow judges rather than prosecutors decide when to try teenagers as adults.

The prosecutors, led by Sacramento County DA Anne Marie Schubert, argued that Brown's measure constituted a "completely different and new initiative" that should go through its own review process. The judge agreed, and Brown has appealed the decision to the state Supreme Court.

Brown's initiative, and the juvenile justice measure he tried to ride onto the ballot, are part of a growing trend away from the lock-them-up-and-throw-away-the-key philosophy that has dominated the criminal justice system in recent decades. The trend picked up speed in 2014 with passage of Proposition 47, which turned some low-level felonies into misdemeanors and made some other changes that displease law-and-order advocates.

Brown said his new initiative would reverse "unintended consequences" of fixed-term sentencing standards he signed into law during his first go-round as governor. They and other laws have left offenders with few incentives to rehabilitate themselves while in prison, Brown and others say.

But critics point out that crime rates in San Francisco, Los Angeles and other cities have increased since the passage of Proposition 47, with a big jump in property crimes that are now misdemeanors instead of felonies. Whether this is a long-term trend or a blip during a long period when crime has been flat or down remains to be seen.

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While it's the job of prosecutors to put bad guys behind bars, they also need to make sure that the people going to prison truly deserve it. There are enough examples of people being wrongfully convicted of crimes to make you wonder if justice is always the top priority of the criminal justice system.

The California Innocence Project says there have been at least 200 wrongful convictions in California since 1989, costing taxpayers $129 million in damage awards and other costs. The National Registry of Exonerations reports that 149 wrongfully convicted people were exonerated in 2015, a record. Among them were 19 convicted killers serving life sentences, and five who had been sentenced to death.

How can this happen? According to the Innocence Project's analysis of wrongful California convictions, 39 percent could be traced to official misconduct, 42 percent involved perjury or false accusations, 26 percent were cases of mistaken identify, and 19 percent were attributed to an inadequate or ineffective defense. (The total is more than 100 percent because many cases involved multiple causes.)

While none of this is new to close observers of the criminal justice system, little has been done to correct the situation. Eyewitness testimony is very persuasive to juries, yet it remains admissible in courts almost without caveat.

While some interrogation methods are more likely than others to produce false confessions, there are no national standards. Most states don't require interrogations to be videotaped, and all allow police to lie to suspects.

As we know from the Ramparts scandal in the Los Angeles Police Department and the Riders scandal in Oakland, some rogue police will do anything to create the evidence needed to convict somebody. Many prosecutors appear to be too willing to believe everything the police tell them.

Then there's the whole area of forensic evidence. With the exception of DNA (which emerged from biology, not criminology), forensic tests don't have to meet any national standard before they're admissible as evidence. Texas, hardly known as soft on criminals, recently banned the use of bite mark analysis in criminal cases.

Critics said bite mark analysis should have joined bullet-lead analysis and microscopic hair analysis long ago as discredited evidence. "For far too long courts have permitted this incredibly persuasive evidence that is cloaked in science, when in fact there has been no scientific research to substantiate…claims that it is possible to identify someone from bite marks," said a spokesman for the New York Innocence Project.

While they shouldn't have been convicted in the first place, those who have been exonerated are the lucky ones. These tend to be the cases where the miscarriage of justice was the most obvious, or that attracted media or public attention, or were taken up by advocacy groups.

The registry believes the number of wrongful convictions is in the thousands each year, but little is being done to bring justice to these people. Just 24 of 2,300 local prosecutors' offices in the country have conviction-integrity units that look for people who should be freed, and they accounted for one-third of all exonerations last year. It makes you wonder how many more were missed.

"Increasingly, prosecutors, judges and defense attorneys are recognizing the systemic problem of wrongful convictions," said the registry report's author, Samuel Gross of the University of Michigan Law School. "That's a welcome change, but it's just a start. We've only begun to address this problem systemically."

Most incarcerated people deserve to be behind bars, but every case of wrongful conviction increases public mistrust of the criminal justice system.

George Boardman lives at Lake of the Pines. His column is published Mondays by The Union. Write to him at ag101board@aol.com.

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