This article by Paul Craig Roberts appeared in the Spring 2003 issue of The Independent Review.
The execution of an innocent person cannot be remedied. This fact, together
with mounting evidence of innocents on death row, has strengthened opposition to the death penalty. Nevertheless, the death penalty has proved to be a divisive issue. The divide between liberals and conservatives on the death penalty could be bridged by changing the emphasis in the issue to wrongful conviction.
Many people support the death penalty from a sense of justice. The same sense
of justice would cause them to oppose wrongful conviction. The injustice lies in the
wrongful conviction, not in the penalty. A wrongfully convicted person who loses
good name, family, and career or who suffers a life sentence of prison rape and execution by AIDS deserves our concern as much as the innocent on death row.
Abolishing the death penalty might worsen the problem of wrongful conviction.
Death penalty cases receive far more scrutiny than other criminal cases. If police and
prosecutors cannot identify and convict the guilty party in capital crime cases, where
evidence and procedures are more closely examined, what must be the rate of wrongful conviction for less-serious crimes, especially those for which conviction is obtained
by plea bargain? Abolishing the death penalty might reduce the attention given to the
issue of wrongful conviction in general.
Most of the scrutiny given to death penalty cases is a search for legal error. It is
much more difficult to detect suborned perjury and the suppression of exculpatory
evidence because they are not in the legal record. Nevertheless, innocence projects
and people convinced of a convicted person’s innocence do sometimes succeed in
bringing to light prosecutorial misconduct that secured the conviction. DNA evidence has been especially productive of success in overturning wrongful convictions
based on junk science, false testimony, and mistaken identity.
A consensus against wrongful conviction is hampered by ideology that portrays
wrongful conviction as a racially motivated phenomenon or as the operational result
of “the white male hegemonic order.” Wrongful conviction is too widespread and
serious a problem to be politicized. In fact, inner-city black juries are more suspicious
of cases brought by police and prosecutors than are white suburban juries. If it were
not for coercive plea bargains, inner-city blacks would face a lower risk of wrongful
conviction than whites. The focus on racial bias cloaks the real problem of prosecutorial misconduct.
The older Marxist view that justice is a function of the size of the pocketbook—
the rich get it and the poor don’t—has no credibility in our time of asset freezes and
prosecutors in search of high-profile cases. Vast sums of money could not protect
Michael Milken and Leona Helmsley from wrongful conviction, nor did money protect Exxon, Michael Zinn (Zinn 1999), Charles Keating (Keating v. Hood 1996), and
the law firm of Kaye, Scholer, Fierman, Hays & Handler (Roberts and Stratton
It is easier to frame a white-collar defendant than to frame a poor member of a
minority group. The common-law crimes associated with the poor—theft, assault,
murder—are well defined. Frame-ups for such crimes require prosecutors to suborn
perjury, suppress exculpatory evidence, and coerce false confession. To frame a whitecollar victim, a prosecutor need only interpret an arcane regulation differently or with
a new slant.
Politicizing wrongful conviction as a manifestation of racial or class prejudice
does not serve the cause of justice. In our time of asset freezes, asset forfeitures, coercive plea bargains, and budget-driven conviction rates, as well as the demise of the
prosecutorial ethic and the erosion of what William Blackstone ([1765–69] 1979)
called “the Rights of Englishmen,” no one is safe.
In this article, I am focusing on the causes of wrongful conviction. Correcting the
problem will require both changing the incentives that police and prosecutors face
and resurrecting the belief that the function of justice is to find the truth. Procedural
and evidentiary reforms—such as those suggested by Barry Scheck, Peter Neufeld,
and Jim Dwyer (2000, 255–60)—would reduce the rate of wrongful conviction.
However, such reforms alone cannot remedy the inroads that a Benthamite view of
law has made on the Blackstonian view. Blackstone conceived of law as the people’s
shield. It is better, he said, for ten guilty men to go free than for one innocent man to
be convicted. In contrast, Bentham viewed the law as a weapon the government
wields to punish criminals or anyone else in the name of the greatest good for the
greatest number. He believed in rounding up people who might commit crimes. He
wanted to restore torture to aid in securing convictions, and he believed that a defendant’s lawyer had an obligation to aid the prosecution.
Wrongful conviction is on the rise because the protections against it have been
eroded by the pursuit of devils—drug dealers, child molesters, environmental polluters, white-collar criminals, and terrorists—all of whom must be rounded up at all
cost. In doing so, we have done what Sir Thomas More warns against in the play A
Man for All Seasons: we have cut a great swath in the law.
Blackstone called the legal principles that made the law a shield “the Rights of
Englishmen.” These rights include due process, the attorney-client privilege, equality
before the law, the right to confront adverse witnesses, and the prohibitions against
crimes without intent, bills of attainder, self-incrimination, retroactive law, and attacks
against a person through his property. Each of these principles has been breached.
Today prosecutors create bills of attainder by tailoring novel interpretations of law to
fit the targeted defendant. A favorite tactic is to criminalize civil infractions, as in the
Charles Keating savings-and-loan case (Roberts and Stratton 2000, 51–54). Clark
Clifford and Robert Altman were indicted not for a statutory violation but on a prosecutor’s “novel theory” that two separate legal transactions comprised a “conspiracy”
(Roberts and Stratton 2000, 54–60). Even accidents and mistakes in filling out government forms have been criminalized, as in the Exxon Valdez and Benjamin Lacy
cases (“Bad Apples” 1996, A12; Boot 1995, A14; Roberts and Stratton 2000, 50,
60–61). The ancient principle of mens rea—no crime without intent—has been obliterated.
The New Deal made its own contribution to wrongful conviction. An important
feature of much New Deal legislation was congressional delegation of law-making
power to regulatory agencies. Delegation combined statutory authority and enforcement authority in the same hands. The bureaucrats’ ability to define criminal offenses
by their interpretation of the regulations that they write gives regulatory police vast
discretion. A cooperative “offender” may get off with a civil penalty, whereas a person
who sticks up for his rights or a person who presents a high-profile opportunity to an
ambitious prosecutor may receive a criminal indictment. The bureaucrats’ ability to
create criminal offenses spontaneously by interpretation makes law uncertain and renders it unable to fulfill its purpose of commanding what is right and prohibiting what
In 1990, U.S. assistant attorney general Stuart M. Gerson expressed Bentham’s
belief about the proper function of lawyers when he indicted the blue-chip law firm
Kaye, Scholer as “an abettor of crime” for not divulging to thrift regulators information pertaining to its client Charles Keating and his Lincoln Savings and Loan (Roberts
and Stratton 2000, 107–10). The Justice Department’s indictment ignored the fact
that Keating’s crime had not been established at the time of the law firm’s indictment
In 1996, federal district judge John G. Davies overturned Keating’s later conviction
as a violation of mens rea and the constitutional prohibition of ex post facto law
(Keating v. Hood), but Kaye, Scholer still suffered the loss of the $41 million it paid
to settle the Justice Department’s indictment.
The Justice Department coerced the law firm into that settlement by freezing its
assets and its four hundred partners’ personal assets (Roberts and Stratton 2000,
107). Many prominent legal authorities regard the government’s action as illegal, but
Kaye, Scholer, unable to meet its payroll or pay its bills, was powerless to resist the
coercion. Not even a prominent law firm can hold the Justice Department accountable if its assets and those of its partners are frozen. Prosecutors enjoy an enormous
degree of immunity from prosecution and civil lawsuit even when their unlawful and
improper actions are exposed.
The asset-freeze and forfeiture laws were intended to be applied to mobsters and
drug dealers. However, the laws’ application was quickly expanded. The majority of
people whose assets are confiscated are innocent property owners. In 80 percent of
forfeitures, no charges are filed against the owners of confiscated property (Levy
1996, 127). For law enforcement agencies, the forfeiture laws have created an offbudget funding source beyond the control of legislators. In 1990, a Justice Department memo for U.S. attorneys stressed: “Every effort must be made to increase forfeiture income during the remaining months of 1990” (Roberts and Stratton 2000,
126; see also Miniter 1993, 33). House judiciary committee chairman Henry Hyde
warned that the forfeiture laws target property, not crime. The result, he said, is that
Americans face “endless possibilities to be caught in the snare of government forfeiture” (Hyde 1995, 10).
Every area of law reflects widespread disregard for the “Rights of Englishmen.”
Superfund law takes retroactive law back generations and places liability on people
and organizations that never contributed an ounce of hazardous waste to a Superfund
site (Roberts and Stratton 2000, 70–81). In child abuse cases, due process and the
right to confront one’s accusers do not exist. Anonymous allegations serve as grounds
for seizing children and placing them in the hands of “therapists” who coax them into
accusations (Lyon 1998; Roberts and Stratton 2000, 144). The Justice Department
and the Housing and Urban Development Department have coerced neighborhoods
that are legally using local zoning ordinances to keep out commercially operated
halfway houses and drug-treatment clinics into abandoning their right to equal standing under the law (Roberts and Stratton 2000, 113–21).
The law as Blackstone understood it has been lost. Formerly, prosecutorial
behavior was regulated by conscience and by the carefully inculcated ethic that the
prosecutor’s duty is to serve justice by finding the truth. The purpose of a trial was to
weigh the evidence for and against the defendant, not to convict him at any cost. A
prosecutor’s career and self-esteem did not depend on his conviction rate. A prosecutor who suborned perjury or withheld exculpatory evidence in order to win a case was
regarded as a shameful figure and an embarrassment to the law.
Crowded court dockets (springing in large part from the conservatives’ war on
drugs), bureaucracy, budgetary pressures, and careerism have contributed to elevating
ambition above justice. The emergence of moral causes or ends that justify the means,
such as “saving our children from drugs” and “making environmental polluters pay,”
has contributed greatly to the breakdown of prosecutorial restraint. Today a prosecutor who gives the defendant the benefit of the doubt is regarded as a failure. Robert
Merkel, a U.S. attorney during 1982–88, says that prosecution “is a result-oriented
process today, fairness be damned” (Moushey 1998, 3). Merkle says prosecutors are
pressured to justify budgets with convictions, “and that causes them to prosecute
absolutely bogus cases to get those statistics” (Moushey 1998, 4). In 1998, former
deputy U.S. attorney general Arnold I. Burns wrote in the Wall Street Journal that “it
is time for a sober reassessment of the power we have concentrated in the hands of
prosecutors and the alarming absence of effective checks and balances to prevent the
widespread abuse of that power” (A23). A law school textbook, Prosecutorial Misconduct, now in its second edition (Gershman 1991), is evidence that the problem is not
going away on its own.
Honest prosecutors have the same interest as defendants in the integrity of the
criminal justice system. It is in their interest that withholding exculpatory evidence
not become routine and that suborned perjury not become the only evidence in a
case. Juries alone are not a deterrent. Juries are often unaware that the witness giving
incriminating testimony not only has been rehearsed in the role but also has been paid
by the prosecutor with money or reduced prison time or dropped charges.
In 1998, the Pittsburgh Post-Gazette summed up its investigative reports of prosecutorial misconduct as follows:
hundreds of times during the past 10 years, federal agents and prosecutors
have pursued justice by breaking the law. They lied, hid evidence, distorted
facts, engaged in cover-ups, paid for perjury and set-up innocent people in
a relentless effort to win indictments, guilty pleas and convictions. Rarely
were these federal officials punished for their misconduct. . . . Perjury has
become the coin of the realm in federal law enforcement. People’s homes
are invaded because of lies. People are arrested because of lies. People go to
prison because of lies. People stay in prison because of lies, and bad guys go
free because of lies. (Moushey 1998, 40)
A new practice known as “jumping on the bus” has taken the prosecutorial ethic
to the rock-bottom depth. Informants sell information on unsolved cases to an
inmate, or prosecutors and federal agents feed this material to an inmate. The inmate
memorizes the case, thereby seeming to have inside knowledge when he comes forward with information to trade in exchange for a reduced sentence. In the absence of
evidence, this practice is used sometimes against a person only believed to be guilty.
Sometimes it is used to close unsolved cases, and sometimes it occurs at an inmate’s
initiative. Formerly, self-serving accusations by criminals were treated only as leads to
be investigated. If the leads proved helpful, evidence still had to be marshaled. Today
the accusation is the evidence. Thus, the criminal element itself has a big say in who
goes to prison.
Weak and fabricated evidence suffices because seldom is it tested in court.
According to the Justice Department, only approximately one case in twenty goes to
trial; the rest are settled with pleas (Maguire and Pastore 1995, 461–63, 483–86).
Conservatives believe that the problem with plea bargaining is that it permits criminals to get off too lightly, thus undermining the deterrent effect of punishment. However, the problem with plea bargains is far more serious.
Plea bargains have corrupted the justice system by creating fictional crimes in
place of real ones. The practice of having people admit to what did not happen in
order to avoid charges for what did happen creates a legal culture that elevates fiction
over truth. By making the facts of the case malleable, plea bargains enable prosecutors
to supplement weak evidence with psychological pressure. Legal scholar John Langbein compares “the modern American plea bargaining system” with “the ancient system of judicial torture” (1978, 8). Many innocent people cop a plea just to end their
ordeal. Confession and self-incrimination have replaced the jury trial. Just as Bentham
wanted, torture has been resurrected as a principal method of conviction. As this legal
culture now operates, it permits prosecutors to bring charges in the absence of crimes.
Plea bargaining is a major cause of wrongful conviction. First, plea bargains
undermine police investigative work. Because few cases go to trial, police have learned
that their evidence is seldom tested in the courtroom. Carelessness creeps in. Sloppy
investigations are less likely to lead to apprehension of the guilty party. Second, plea
bargaining greatly increases the number of cases that can be prosecuted. Prosecutors
have found that they can coerce a plea and elevate their conviction rate by raising the
number and seriousness of the charges that they throw at a defendant. Counsel
advises defendants that conviction at trial on even one charge can carry more severe
punishment than a plea to a lesser charge. The sentencing differential alone is enough
to make plea bargaining coercive.
A circularity of reasoning justifies plea bargaining. Without plea bargaining, the
argument goes, the courts would not be able to handle the caseload. This argument
is unconvincing. The obvious solution is to create enough courts to handle the caseload or to reduce the caseload by eliminating victimless crimes, such as drug possession and trumped-up charges based on regulatory interpretation. Without the war on drugs, asset forfeiture, and months-long court disputes over the meaning of a lengthy
arcane regulation, there would be enough courts and judges to handle the serious
Every law, regulation, or reform has unintended consequences. A case can be
made that the exclusionary rule changed the culture of the criminal justice system and
led to the coerced plea bargain. By releasing criminals known to be guilty, the exclusionary rule turned the criminal justice system into a lottery for police, prosecutors
and criminals alike. The result was demoralized prosecutors who began to see in the
plea bargain a way to game the system back toward conviction. The unintended consequence of the exclusionary rule was cultural change. The criminal justice system
deemphasized pursuit of the truth and focused on convicting the defendant.
Once we understand that the law has been lost, it is easy to understand why there
are innocents on death row. As important as it is to get these innocents off death row,
new victims of the system can be put there faster than innocence projects can rescue
them. Moreover, the preoccupation with capital offenses and with cases in which
DNA evidence can resolve the doubt about innocence leaves the vast majority of
wrongfully convicted persons without a prayer.
To make a dent in wrongful conviction, we must rethink the approach. Innocence projects and law professors who find injustice a burden on the conscience can
work to reestablish the inculcation of the ethic in law school, an ethic so well
expressed by George Sutherland (Berger v. U.S. 1935) and Robert Jackson (1940):
that the prosecutor’s duty is to see that justice is done, not to win convictions. If the
law schools can be carried, so can the bar association and the journalism schools. Stories about wrongful prosecution should become a media priority.
Law schools must deal as well with the Benthamite influences that have eroded
the “Rights of Englishmen” and have made law a weapon in the hands of government. If Benthamite collectivism, aided by deconstructionism and cultural Marxism,
has undermined the legal principles that protect individuals from government power,
nothing can be done about wrongful conviction until the Blackstonian principles are
Progress against wrongful conviction also requires a return to constitutionalism.
To many lawyers, “constitutional protection” means the granting of protected minority status by a federal judge. If antipathy to guns is more important that the Second
Amendment, offense to preferred minorities more important than the First Amendment, and race and gender quotas more important than equality before the law, it is
little wonder that a prosecutor’s conviction rate is more important than a fair trial and
that justice plays second fiddle to clearing the court docket.
It is often said that Americans live under the rule of law. It is closer to the truth
to say that Americans live under the rule of regulators. Theodore Lowi (1979) has
argued that accountable law in the United States ceased seventy years ago with the
delegation of law-making power to the executive branch in violation of the principle
that a delegated power cannot itself be delegated. The people delegated law-making
power to Congress, where under our system of government it must reside forever.
First, however, law must be put back in the hands of Congress, an unlikely event when
government is so large that it involves itself in every aspect of life. It is just as unlikely
that trials will take the place of plea bargains as long as so many laws create so many
crimes, and so few resources are devoted to courts and trials.
The problem of wrongful conviction is much larger than many of its antagonists
appreciate. We will spin our wheels expending vast energies in freeing a few innocent
people, and we must do what we can. But we also must gird for battle and restore the
lost law. Once the “Rights of Englishmen” are no longer even a memory, justice will
be gone as well.
Bad Apples. 1996. Wall Street Journal, July 19, A12.
Berger v. United States. 1935, 295 U.S. 78, at 88.
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Boot, Max. 1995. A Rotten Fate. Wall Street Journal, November 3, A14.
Burns, Arnold J. 1998. What By-the-Book Prosecutors Can Get Away With. Wall Street Journal, March 23, A23.
Gershman, Bennett L. 1991. Prosecutorial Misconduct. 2d ed. St. Paul, Minn.: West.
Hyde, Henry. 1995. Forfeiting Our Property Rights: Is Your Property Safe from Seizure? Washington, D.C.: Cato Institute.
Jackson, Robert H. 1940. The Federal Prosecutor: An Address by Robert H. Jackson, Attorney General of the United States, Delivered at the Second Annual Conference of U.S.
Attorneys, Great Hall, Department of Justice, Washington , D.C. (April 1). Cited in Morrison v. Olson, 487 U.S. 654, 727-228 (1988) (J. Scalia, dissenting).
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Lyon, Kathryn. 1998. Witch Hunt. New York: Avon.
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Miniter, Richard. 1993. Ill-Gotten Gains: Police and Prosecutors Have Their Own Reasons to
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