Ken Strutin
Ken Strutin ()

Half a million years have been siphoned from a generation living in New York’s prisons, jails and varia of confinement.1 Nationwide, 1,378 people have been executed since the mid-1970s while 144 on death row have been exonerated, most of whom spent a decade or more in prison awaiting their outcomes.2 And then there is the almost 12,500 years that the wrongfully convicted have lived behind bars over the last quarter century.3 These are the unaccounted dividends of mass incarceration,4 the irreducible measure of injustice in search of a remedy.

There comes a point in the life of every society when conscience can no longer be sacrificed to expedience. The war on crime has elevated the presumption of guilt, deflated the presumption of innocence and promoted retributive punishment to an end in itself. Hence, people have been wrongly incarcerated in numbers too high for a vaunted system of justice. Still, there is brewing a perfect storm of political will, economic necessity and fundamental fairness that might yet re-tune the machinery of guilt and punishment.

Year of Action

In his 2014 State of the Union speech, President Barack Obama said: “Let’s make this a year of action.” In the arena of criminal justice, it might be such a year. Indeed, there is in the offing the promise of a sabbatical from heavy-handed sentences and unjust convictions.

At the close of last year, President Obama granted relief to eight petitioners who had received disparate sentences for federal drug-related offenses. The “Statement by the President on Clemency,” released on Dec. 19, 2013, referenced the Fair Sentencing Act (FSA) that closed the gap between punishments for crack and powdered cocaine. Still, it was remedial prospective legislation that did not address the thousands sentenced before its effective date.

Each of the men and women granted equitable relief had already served more than 15 years in prison, and the president observed that “the sentencing judges expressed frustration that the law at the time did not allow them to issue punishments that more appropriately fit the crime.”5

The president further declared that these commutations were a first “important step toward restoring fundamental ideals of justice and fairness,” and he encouraged Congress to follow-up with additional sentencing reforms.

Meanwhile, immediate steps are being taken through executive action.6 In effect, these pardons have become the starting point for a new federal clemency initiative announced during a recent speech by Deputy Attorney General James Cole to the New York State Bar Association:

We envision that attorneys will assist potential candidates in assembling effective and appropriate commutation petitions—ones which provide a focused presentation of the information the Department and the president need to consider—in order to meaningfully consider clemency for similarly situated petitioners. … We anticipate that the petitioners potentially eligible for consideration would include: non-violent, low-level drug offenders who were not leaders of—nor had any significant ties to—large-scale organizations, gangs, or cartels. We would also look for petitions from first-time offenders or offenders without an extensive criminal history.7

Explicit in these comments is the need for counsel and the reality that resources available to pro se federal clemency seekers are small to say the least.8

Moreover, these steps represent a tacit acknowledgement that every day spent in prison, whether under a wrongful conviction or an excessive sentence, is in an intolerable infringement of liberty and dignity.

As the president noted, judges are voicing their concerns through obiter dicta. Following closely on the heels of these developments, U.S. District Judge Paul L. Friedman renewed his clemency recommendation for a federal drug offender that he long considered a “worthy candidate” for relief:

The Court continues to believe that Byron McDade is a prime candidate for executive clemency. The sentence this Court was required to impose on Mr. McDade was unjust at the time [2002] and is ‘out of line’ with and disproportionate to those that would be imposed under similar facts today. While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the president is not. The Court urges Mr. McDade’s appointed counsel to pursue executive clemency on Mr. McDade’s behalf so that justice may be done in this case.9

It can be hoped that the federal example will inspire some movement on the state clemency front. Indeed, the president’s new policy might be seen by other executives as permission to be merciful if not equitable.10

Each Unhappy Family

According to a new report from The National Registry of Exonerations, 2013 saw 87 documented cases (published, reported or discovered), the highest number in the last 24 years. Eight of those cases originated in New York, and not a single pardon or commutation among them.11

Another distinction of last year’s exonerations is the inverse relationship between the increasing count of non-DNA cases compared with the declining number of DNA-based relief. This is an important metric because it alerts the legal community to the broad bases for exoneration within the larger context of wrongful incarceration.

In addition to convictions overturned by non-DNA or DNA evidence, other infirmities were highlighted. For instance, in 27 of these exonerations “no crime in fact occurred”; and in 17 cases the defendants had pled guilty.

Another notable revelation was the 33 exonerations obtained through police involved reinvestigations. According to the report, these numbers also showed an increased awareness, responsiveness and initiative by police and prosecutors in confronting possibly “false convictions” and “claims of innocence.”12

Even though these statistics speak to a fraction of the documented cases, they present an informative picture of corrective post-conviction justice.13

According to the report, the chief causes of wrongful conviction are: perjury or false accusation; official misconduct; mistaken witness identification; false or misleading forensic evidence; and false confession.14

And it pointed out that “false conviction is not one pathology with a single set of contributing risk factors but a set of several different problems with different causal structures depending on the crime.”15 Or to paraphrase Leo Tolstoy, all valid convictions resemble one another, each wrongful conviction is wrongful in its own way. The same holds true for punishments.

The convictions in the reported cases are emblematic of overcriminalization, unforgiving sentencing laws, restrictive parole policies, and clemency apathy. Overall, this pathology leads to a spectrum of necrotizing penalties and punishments.

Without a post-conviction right to counsel, the incarcerated and the poor face the same obstacles to justice that made their convictions wrongful in the first instance. Indeed, there is a moral human imperative that mandates the appointment of counsel and the unhindered review of post-conviction petitions and petitioners.

Conscience of the King

Historian and Albany Law School professor Paul Finkelman’s new study of mass injustice in the time of Abraham Lincoln sheds additional light on the metrics of today.16

For nearly two months in the late summer of 1862, Minnesota was the scene of a raw human conflict that has come to be known as the U.S.-Dakota War.17 The Dakota (Sioux) Indians had not been receiving their annuities—payment for ceding their land to the government—resulting in starvation and hardship.18 In fact, their money, their food, and their way of life were being erased, and they fought back.

A small group of Dakota engaged in hostilities, but their non-combatant population along with the uninvolved Winnebagoes paid a price.19 Treated as a de facto war, the conflict ended in de jure punishment for hundreds and retribution for all.

Nearly 400 Dakotas were charged with the crime of “going to war with the United States.”20 They appeared at hearings averaging less than 10 minutes, without counsel or any aid in their defense. The chief criterion for prosecution and conviction was an indiscriminate finding of participation (or guilt by association), regardless of the individual’s actual conduct, and 303 Indians were sentenced to death.

President Lincoln, alert to the essence of due process from his lawyer days, weighed and balanced the motives of those handling Indian affairs, the legal considerations made manifest in the conflict with the Confederacy, and powerful political pressures and popular opinion.21 Looking to the core of fairness, he demanded to see the records of all the hearings before permitting any sentence of execution to be carried out.

The president undertook the difficult task of ascribing individualized guilt. In essence, he distinguished combatants from criminals, i.e., the simple participants from those who had actively committed rape or murder.22 Applying a sense of justice heavily burdened by the tribulations of his times, he reprieved 265 and let stand the sentences of 38—no new trials had been ordered.

Never before or since in U.S. history had so many been sentenced to death at one time and granted clemency in such numbers.23 Here is Finkelman’s description of the unprecedented outcome:

On December 26, 1862, the army hanged thirty-eight Dakota men. Some of those executed had in fact killed civilians needlessly, murdered captured prisoners, defiled dead bodies, and raped captured women and girls. Under the rules of war at the time, the men who committed these acts were legitimately executed for what today we would call “war crimes.” However, the overwhelming majority of those sentenced to death, and many of those actually executed, were almost certainly innocent of such offenses.24

It was President Lincoln’s restoration of truth-seeking and fairness to these drumhead judgments that saved them, for the most part, from total ignominy and bore witness to due process and equity by making the unseen visible.

History is over, but judgment of the past never ends. As this recounting illustrates, it is in the retrospective of time, statistics and scholarship that the conscience of society continues to be measured.25

Cause and Butterfly Effect

Facts and judgments are formed at the inception of a criminal investigation and set the probabilities for conviction or exoneration. In terms of chaos theory or the butterfly effect, even the smallest valence in those facts or conclusions can radically change the outcome.26

A mosaic of errors, small and gross, can make the justice system unpredictable at times. Yet, even a chaotic system should exhibit steadiness at the deepest levels. Thus, when the presumption of innocence has been exhausted, it must be followed by a rudimentary fairness to correct outcomes built on errors in judgment and process.

The same criminal case prosecuted an infinite number of times yields no formula for determining how often it would produce any particular result. This uncertainty is accepted as part of the common law’s legal dissonance, the nature of a due process that can convict the guilty and the innocent with ruthless efficiency and indifference. On the whole, post-conviction law is a collection of recursive procedures and presumptions designed to protect finality of outcomes at the expense of truth and fairness.27

And for the pro se prisoner seeking relief from the other side of a conviction, these procedures and presumptions are insurmountable walls. Thus, the wrongfully convicted or incarcerated are denied fairness regardless of their true culpability or the merits of punishment. Ironically, the rules meant to ensure justice can result in confounding it.

Despite its devotion to the past, the law is a poor student of history. It embraced the conservatism of precedent and finality without an appreciation for the role played by evolving human values and the constant of human error.

Precedent is the prison of logic to which equity holds the key. Indeed, it is in the discretion of the judiciary and the executive that prisoners can be humanized and injustices corrected. So it is that an uneven system of legal administration can right itself through the exercise of equity.28


While prison populations vary over time, injustices remain constant. Thus, a prison is overcrowded if there is one innocent person within its walls, one person unfairly tried or one person excessively punished.

The chief auditors of wrongful incarceration are the incarcerated. They know the legitimacy of innocence and guilt, the fairness of trials and pleas, and the merits of sentencing and punishment.

Of late, the currents of justice have begun to course through new policies, ameliorative laws, and innovative reforms, but the convicted are stuck in the eddies and backwashes. Most cannot benefit from advances in legal thinking and social justice without lawyers and access to the courts. Thus, their claims for fairness and moderation remain tangled in a web of procedures and politics.

Equitable remedies should be invoked to cut through this Gordian knot. Otherwise, the new metrics of injustice will become the requiem for the next half-million years behind bars.

Ken Strutin is director of legal information services at the New York State Defenders Association.


1. See generally “Under Custody Report: Profile of Inmate Population Under Custody on January 1, 2013″ (NY DOCCS 2013) at 12-15; Lewis E. Lawes, “Twenty Thousand Years in Sing Sing” (1932) (“Twenty-five hundred men saddled with an aggregate of twenty-thousand years.” Id. at 239).

2. See Facts About the Death Penalty (DPIC April 24, 2014); Time on Death Row (DPIC); The Innocent and the Death Penalty (Innocence Project).

3. See Exonerations in 2013 (Nat’l Reg. of Exonerations) at 9 (covering the period from 1989-2013).

4. See generally “Mass Incarceration: The Whole Pie,” Prison Policy Initiative Brief, March 12, 2014 (infographic); Ken Strutin, “Mass Incarceration and the ‘Degree of Civilization,’” LLRX, Sept. 4, 2012.

5. See “Case Studies: The 21 People Getting Clemency From Obama,” Wall St. J., Dec. 19, 2013.

6. See Matt Apuzzo, “Holder Backs Proposal to Reduce Drug Sentences,” N.Y. Times, March 14, 2014, at A18. See generally Kathleen Miles, “Just How Much the War on Drugs Impacts Our Overcrowded Prisons, In One Chart,” Huffington Post, March 10, 2014 (half of federal inmates serving time for drug offenses).

7. Remarks as Prepared for Delivery by Deputy Attorney General James Cole at the New York State Bar Association Annual Meeting, U.S. Dept. of Justice News, Jan. 30, 2014 (emphasis added). See also Announcing New Clemency Initiative, “Deputy Attorney General James M. Cole Details Broad New Criteria for Applicants,” U.S. Dept. of Justice News, April 23, 2014.

8. See Mercy Project at NYU Law School (federal sentences only); Federal Commutation Clinic at University of St. Thomas; Statement of Groups Participating in Clemency Project 2014 (ACLU). See generally Ken Strutin, “Clemency Clinics: A Blueprint for Justice,” LLRX, June 17, 2012.

9. See United States v. McDade, No. 13-1066 at 8 (D.D.C. April 29, 2014). See generally Joanna M. Huang, “Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency,” 60 Duke L.J. 131 (2010); Ken Strutin, “Clemency: A Remedy in Need of Revival,” NYLJ, Aug. 21, 2013, at 4.

10. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289 (1998) (O’Connor, J. concurring and calling for minimal due process in clemency proceedings). See generally Ken Strutin, “Clemency and the Vanishing Point of Decision Making,” LLRX, Jan. 20, 2014.

11. See Casey Seiler, “Cuomo Announces First Pardons of His Tenure,” Albany Times Union, Dec. 31, 2013.

12. Exonerations in 2013, at 3. See generally Jonathan M. Kirshbaum, “Actual Innocence After Friedman v. Rehal: The Second Circuit Pursues a New Mechanism for Seeking Justice in Actual Innocence Cases,” 31 Pace L. Rev. 627 (2011).

13. Exonerations in 2013 at 4.

14. Id. at 17.

15. Id. at 18. See also John F. Hollway, “A Systems Approach to Error Reduction in Criminal Justice” (Quattrone Center 2014).

16. See Paul Finkelman, “U.S.-Dakota War of 1862: ‘I Could Not Afford to Hang Men for Votes.’ Lincoln the Lawyer, Humanitarian Concerns, and the Dakota Pardons,” 39 Wm. Mitchell L. Rev. 405 (2013).

17. Id. at 421-22.

18. Id. at 416, 419.

19. Id. at 416-18, 425, 428, 443.

20. Id. at 424-26.

21. Id. at 435-36, 440-442.

22. Id. at 447-48.

23. See generally Clemency (DPIC).

24. Id. at 413-14 (footnotes omitted). See also Samuel R. Gross et al., “Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death,” PNAS Early Ed., No. 1306417111, March 25, 2014 (“With an error rate at trial over 4%, it is all but certain that several of the 1,320 defendants executed since 1977 were innocent.” Id. at 6.). See generally Brandon L. Garrett, “The Banality of Wrongful Executions,” 112 Mich. L. Rev. 979 (2014).

25. See, e.g., Paul C. Giannelli, “Junk Science and the Execution of an Innocent Man,” 7 N.Y.U. J.L. & Liberty 221 (2013) (Cameron Todd Willingham); James S. Liebman et al., “Los Tocayos Carlos,” 43 Colum. Hum. Rts. L. Rev. 711 (2012) (Carlos DeLuna).

26. See Robert E. Scott, “Chaos Theory and the Justice Paradox,” 35 Wm. & Mary L. Rev. 329, 348 (1993) (discussing tension between common law formalism (linear, deductive, precedent bound) and equity realism (non-linear, inductive, case sensitive), in other words “future justice” versus “present justice”).

27. See generally Laurie L. Levenson, “Searching for Injustice: The Challenge of Post-Conviction Discovery, Investigation, and Litigation,” 87 S. Cal. L. Rev. 101, 124-127 (2013) (discussing the tension between accuracy and fairness).

28. See Medina v. California, 505 U.S. 437 (1992) (O’Connor, J. concurring: “The balancing of equities that Mathews v. Eldridge [424 U.S. 319 (1976)] outlines remains a useful guide in due process cases.” Id. at 453. (emphasis added)).