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The presumption of innocence is on life support. To believe otherwise would be to ignore the empirical data. The accused are convicted at an alarmingly high rate in both federal and state courts. Regrettably, New York sets the standard in this regard—with a conviction rate approaching 99 percent in the Southern and Eastern District according to the latest available data. It does not get much better in Manhattan State Supreme Court, where the conviction rate is north of 80 percent. These percentages are not a reflection of some stark reality where the vast majority of the accused are in fact guilty. In fact, a close examination of how these figures are compiled does not offer any comfort. For instance, in the Southern and Eastern District, approximately 95 percent of convictions can be attributed to guilty pleas. And we now can be certain that the accused plead guilty for a number of reasons—lack of education or resources to mount a defense, or, ironically, because of the elevated conviction rates. See Judge Jed S. Rakoff. “Why Innocent People Plead Guilty,” New York Review of Books (November 2014); Judge John L. Kane. “Plea Bargaining and the Innocent,” The Marshall Project (December 2014). In the cost versus benefit analysis, many criminal defendants fear that because there is such a high likelihood they will be convicted, they would rather accept a guilty plea (and the attendant more lenient punishment) than roll the dice with a jury and risk a lengthy prison sentence.

Once guilty pleas are siphoned off, we are still left with an extraordinarily high number of guilty verdicts. Judges, prosecutors, and many in law enforcement resort to the simple reasoning on this—people are found guilty because they are in fact guilty. But that conclusion ignores several important realities. First, while it is difficult to quantify how often it occurs, prosecutors and members of law enforcement sometimes just get it wrong. Whether it is tunnel vision, failure to follow proper identification procedures, Brady violations, or due to the actions of rogue cops or prosecutors, the innocent are sometimes accused of crimes that they simply did not commit.

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