The problem of wrongful convictions must be ‘central’ to criminal justice reform efforts, warn experts

By Andrew Z. Giacalone

Last Thursday’s much-publicized conversation on criminal justice reform between Marshall Project editor Bill Keller and President Barack Obama failed to address “the real and hidden problems” facing our criminal justice system nationwide, according to criminal defense and civil liberties attorney Harvey Silverglate.

Writing in a blog post for

Public Radio International

and published over the weekend, Silverglate laments that by inviting only “higher-ups” to engage the President on the issue, the resulting conversation ended up being limited to discussions of macro policy instead of how those policies unfold on the ground, such as in the ways that prosecutors “routinely misuse their power.”

In addition, he explains, the reforms discussed by Keller, President Obama, US Attorney John Walsh and Los Angeles Police Chief Charlie Beck belie what he described as “a central scandal” – the fact that “a vast number of defendants are prosecuted for either (1) engaging in conduct that should not be criminalized at all, or for (2) acts that they did not commit but which a rewarded witness fingered them for.” 

“These structural defects of the criminal justice system will continue to result in over-incarceration of our innocent fellow citizens, even if all of the reforms discussed at Keller’s White House extravaganza come to pass,” he continues. “The reforms mentioned at the panel – reduction of long sentences, the targeting of only the “worst-of-the-worst,” an increase in federal community policing grants – will only put a dent in the problem.”

Among the growing criminal justice tragedies that the panel ignored, warns Silverglate, is the “toxic plea bargaining culture” that has developed throughout the country, particularly in the guise of government cooperation in exchange for lower sentences.

“Endowed with the immense power of imposing long prison sentences, a prosecutor can single-handedly get a defendant to say almost anything about almost anybody,” adds the author. “Such witnesses, as the saying goes, will ‘not only sing, but compose.’ Many an innocent defendant has gone to prison for decades based on such bought testimony of dubious accuracy.”

That, in fact, was the case with Innocence Project client and exoneree

Lewis Fogle

, who had his conviction for the 1976 rape and murder of a 15-year-old girl thrown out by a judge in September. Fogle spent 34 years in prison for a crime he didn’t commit. He was convicted largely on the testimony of three jail house informants who claimed that he confessed to them while incarcerated.  

“Making wrongful conviction and innocence-related issues central to the criminal justice reform conversation is an important way to highlight the issues plaguing the larger criminal system, from racial inequity to the plea system,” noted Rebecca Brown, the Innocence Project’s Director of Policy. “This is especially true if we plan to tackle and resolve the problems affecting criminal justice in any meaningful way.”