I had to double check to make sure I wasn’t reading an article in The Onion a few weeks ago when Chief State’s Attorney Kevin Kane argued in the New Haven Register that the way to ensure “conviction integrity” was to give his prosecutors broader, unchecked power to conduct investigations and arrest citizens of Connecticut.
His opinion piece was in apparent response to a column published the week before by Professor David Cameron of Yale, who argued that Connecticut needed a “conviction integrity unit” to ensure adequate and effective review of convictions in Connecticut.
Kane’s proposal involves “reforming” the grand jury process. His proposal – which has been the subject of bills submitted to the legislature for a few years now – would essentially make it easier for prosecutors to conduct investigations by forcing people to appear before individual judges in each judicial district and give testimony concerning any felony. He also wants to arm his prosecutors with the power of the investigative subpoena, which would be little more than carte blanche for prosecutors to command the appearance of uncooperative citizens and force them to bring papers and effects, all in the “interests of justice.”
I can say without reservation that every single person reading this has a different definition of what that “in the interest of justice” means. As amorphous and flexible a standard as “probable cause” is, I have yet to hear of a burden of proof as indescribable and incomprehensible as “interest of justice.”
What is missing from either proposal is the recognition that perhaps the best way to avoid wrongful convictions in the first place is to ensure that people don’t get, you know, wrongfully convicted.
Kane seeks to minimize the number of wrongful convictions and touts the fact that of 100-plus cases analyzed by his office and the Innocence Project, there were no errors uncovered.
Of course, this assumes, as Cameron points out, that every wrongful conviction case will have DNA evidence that exonerates. Logic will tell you that this is impossible. In fact, most students of the system are unable to give accurate estimates of the numbers of wrongful convictions for that precise reason: without an identifiable marker such as DNA, it is virtually impossible to estimate one way or another how many people are wrongfully convicted.
A further complication, of course, is that it’s unclear just what we mean by a “wrongful conviction.” You ask the lay person and they’ll tell you simply enough that it involves a person who’s innocent being convicted of a crime.
But dig deeper: guilty of what, exactly? The real world and the actions we take are open to several interpretations. Our penal code has sought to codify most conceivable illicit acts, and by virtue of being overinclusive, necessarily has more than one provision that applies to any given criminal activity. So, what then, is a wrongful conviction? Are we to limit that term to only those who are innocent of any form of wrongdoing? Or must we be more realistic and expand that term to include people who are guilty of something lesser but are, for one reason or another, convicted of something more serious?
If we really want to shore up the integrity of the criminal justice system, I have some suggestions. First, stop over-charging. There are a hell of a lot of people who are in prisons today serving bloated sentences because some prosecutors over charge in an effort to get leverage.
They have that leverage because of the second item on my list: mandatory-minimums. Mandatory-minimums are legislature-set floors for incarceration periods. They seek to treat all crimes of a certain type as the same, regardless of any mitigating circumstances. In the name of “truth in sentencing” and “tough on crime,” mandatory-minimums have eliminated the ability for judges to make nuanced decisions in every case and instead have given some prosecutors a hammer with which to bludgeon a plea out of frightened defendants.
If you’re charged with a crime which would result in a sentence of at least five to 10 years after trial, would you adamantly maintain your innocence and take the risk or would you take the plea offer that involves a sentence of only one year? What would you advise your daughter to do?
Our prisons are full of people who take plea deals in exchange for a “lesser” sentence because the alternative is so harsh. Our system is coercive and some of our prosecutors use that to full effect. If Kane wants to ensure integrity in our system, maybe he should start there. Maybe he and his office should oppose mandatory-minimums.
Here’s a novel idea: Maybe prosecutors who engage in misconduct should have to suffer some consequences. The National Registry of Exonerations maintained by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law estimates that official misconduct played a role in 43 percent of wrongful convictions.
What, exactly, happens in Connecticut to prosecutors who are reprimanded by appellate courts for engaging in misconduct? Is there remedial training? Integrity in the convictions obtained through the system isn’t limited to whether “we got the right guy.” Life, shockingly, isn’t as black and white. Integrity comes when we give meaning to the word “justice.” And justice comes in many forms. But how are we to have faith in the integrity of the system when justice is a punchline and prosecutors keep score of their wins and losses?
Because the joke, of course, is that when we have lost faith in the system, we are all losers.
Gideon is the pseudonym of a Connecticut public defender. In his spare time he also blogs at apublicdefender.com. Everything in his columns are his personal opinion only and should not be mistaken for those of the Division of Public Defender Services. He can be contacted at firstname.lastname@example.org.