Of the many troubled social institutions in American life—including public education, welfare, health, and the family—none is in greater difficulty than the criminal justice system. Many billions of federal dollars have been spent on criminal justice agencies and programs since the introduction of the Law Enforcement Assistance Administration in the late 1960s in the “war on crime” stemming from persistent public pressure for greater personal safety. Astronomic sums have been allocated to upgrade law enforcement equipment; to go on-line in this computer age so that law enforcement agencies can more efficiently collect, record, maintain, and share information; to improve forensic science; to recruit and train additional qualified personnel (more than 100,000 new police officers alone in the latest crime bill, 1994–1995); to reduce racial, gender, and ethnic biases in the system; to speed up the criminal justice process; to rewrite the criminal codes and impose draconian sentences on those convicted of drug offenses; to revive the death penalty; to move toward [Page x]definite (fixed) sentences, of longer duration; and to upgrade the efficiency and effectiveness of the various criminal justice subsystems, including the police, prosecution, courts, and corrections.

Much, much more needs to be done in nearly every facet of the criminal justice enterprise to modernize policing, prosecution, the judicial arm, and the corrections subsystems, including probation, parole, and adult and juvenile prisons and training schools, and to improve efficiency. The corrections system is currently so large that the adult prison system employs more people than any other agency in state government. Significantly, the cost of supporting the swollen criminal justice enterprise is now about half of the total expenditures of large metropolitan communities, especially in highly urban counties. In every legislative session, more criminal justice bills are introduced, and usually left to die without consideration, than bills in any other substantive area. The vastness of the investment in money, personnel, and physical facilities is neither known nor generally understood by the general public, who continue to rank “the crime problem” among their top three concerns—usually as number one.

The criminal justice system has launched massive and costly efforts, especially in the never-ending “war on drugs,” to prevent and control crime; to incapacitate repeat and dangerous offenders; to neutralize urban street gangs in large and small cities and in the prisons; to reduce the incidence of DUI (driving under the influence of alcohol or drugs); to do something about sex offenders, white-collar criminals, and spouse abusers. Efforts have also been made to rehabilitate offenders through K-12 and sometimes postsecondary education programs in prison, vocational training, work, social skills training, counseling, and all the rest. Still, the record remains bleak and the public dubious about the outcome of these efforts and, more generally, of the “war on crime.” It is, of course, true that official Uniform Crime Reports data show that crime peaked in the 1970s, held steady during the first half of the 1980s, and has declined in the past 10 years. The number of all reported “index crimes”—murder and nonnegligent manslaughter, rape, robbery, aggravated assault, burglary, larceny-theft, auto theft, and arson—fell sharply in 1994 and even more sharply in the first half of 1995. Corroboration of this welcome trend is to be found in victimization studies conducted by the Census Bureau and by academic researchers. For some years now, households and business establishments have reported significant declines in the most common personal and property crimes.

[Page xi]At the same time, incarceration rates (adult and juvenile prison and jail populations) have been increasing, with no sign yet that they have begun to level off. Nationally, there are now more than 1 million prison inmates—more than 100,000 in California alone, and Texas and Florida will approach this number before long. In Ohio, as in many other jurisdictions, the number of prisoners has quadrupled since 1970 and doubled since 1980. Where there were once 7 Ohio adult institutions holding 7,700 inmates (1973), at midyear in 1995 there were more than 43,000 convicts in 28 prisons. California's prison system used to take 4% of that state's budget; it now gets 8%—the additional 4% mostly from funds that could have been spent on education. In Ohio, as elsewhere, the increase in the penal population has occurred primarily because of the “war on drugs”; the legislative upgrade in sentences jumped the average time served in confinement in Ohio from 2.2 years to well over 4 years for inmates paroled in the 1980s and remained constant at 1.1 years for those released on definite sentences. Stricter enforcement of the conditions of parole has resulted in an unprecedented jump in parole violators returned to prisons. An assortment of other changes, including the tightening of the system leading to the incarceration of greater numbers of convicted felons and the shrinking in the proportion granted parole, when eligible, accounts for the rest of the increase. The number of lesser offenders being held in jails (awaiting trial or doing time) has also doubled. Finally, the number of juvenile offenders in training schools and private placement has grown substantially. The incapacitation movement has resulted in huge growth in the numbers of blacks and lower-class young adults under correctional supervision and control. More young black males are in penal confinement or under community supervision than are in college. It is estimated that one-fourth of young African American males are under the control of the criminal justice system.

All that having been said, the great revolution in criminal justice in the 20th century has not been in the crime problem but in the criminal justice process. As any student of this process knows, and as many in law enforcement and the prosecutorial and correctional subsystems have yet to accept, court decisions have transformed the face of the process, adding a whole new dimension to it. Never has the term due process been more rigorously implemented in all phases of the justice system—from arrest to final release from state control. Such phrases as Miranda warnings, the exclusionary rule, equity and fairness, arbitrary and capricious decisions, [Page xii]fair trial, and inmate rights, as well as many other concepts and themes, have been forced on the system by federal and higher state courts.

In his book The Limits of the Criminal Sanction, Herbert Packer (1968) describes two very different criminal justice models: the due process model in the United States and the crime control, inquisitorial, or social defense model in continental Europe. Packer compares the European crime control model to an assembly line in which the law enforcement arm is the chief element. The police apprehend factually guilty or probably guilty suspects and the other actors in the system—prosecutors, defense attorneys, and judges—play specialized roles in translating probable guilt into legal guilt. As Packer notes of this model, “The image that comes to mind is an assembly line which moves an endless stream of cases, never stopping, carrying them to workers who stand at fixed stations and who perform on each case as it comes by the same small but essential operation that brings it one step closer to being a finished product or… a closed file.” Further, he notes, ‘The criminal process is seen as a screening process in which each successive stage… involves a series of routinized operations whose success is gauged primarily by their tendency to pass the case along to [successful] conclusion’ (p. 21).

In sharp contrast, in the model if not always in practice, the due process model is supposed to operate “as an obstacle course.” The general premise is that the movement from probable to legal guilt must be cumbersome and difficult so as to ensure near certainty that persons found guilty are indeed guilty and deserving of punishment. In this approach, there can hardly ever be too many legal hurdles in the process of investigation, arrest, trial, plea, conviction, and disposition. In both models, protection of the public is paramount. In the due process model, an equally important goal is the protection of the rights of suspects as well as those found guilty and those already under state control. The due process model can tolerate some false negatives—guilty persons not arrested, convicted, or sentenced—but it cannot readily tolerate false positives—persons wrongly convicted. The social control model can abide false positives but not false negatives. This puts the two concepts at opposite ends of the philosophical spectrum and leads to irreconcilable conclusions as to the operation of the system, the acted on, and the actors.

This, of course, brings us to the subject of the current volume. Wrongful convictions, however infrequent, are anathema to the American due process system and to all who believe in the fairness of our law enforcement [Page xiii]and judicial systems and the constitutional protections guaranteed individual citizens. Not only do such wrongful convictions violate trust in our system, but, as the authors painstakingly assert, such convictions undermine public safety by leaving the “true” positives—the guilty—in the community to commit future grave offenses.

As I know from personal contact with all the authors, this book has been a decade or more in the making. The volume expresses their deeply held commitment to due process and the need to protect equally society, the families and loved ones of crime victims, and the false positives from the inevitable errors that all human institutions sometimes make—unintentionally, accidentally, or through failures in the workings of the system known popularly as snafus (and by many less delicate names as well). In a moderate voice, this book examines the painful issues in wrongful conviction. The focus is geared to answering the core questions: How often does it happen? Why does it happen? How does it happen? To whom does it happen? How can it be prevented from happening? How should the wrongfully convicted be made whole again—what constitutes adequate compensation?

In this well-researched and fascinating volume, Huff, Rattner, and Sagarin mix materials from case files in the literature and those reported in numerous research reports and in the media. They present a great deal of information on research studies, both national and international, concerning the accuracy of eyewitness perceptions. Interviews with individuals who have been wrongly convicted and subsequently exonerated, as well as with some of the actors in the system are included, as are trial documents, court transcripts, and media reports on trials. There is no other book available on the “guilty” but innocent with such a broad focus and so much rich detail. It is a good read, indeed.

The authors begin by discussing some celebrated cases—some known to the general reader, but most known only to specialists. These celebrated historic cases include the Salem witchcraft cases; the Alfred Dreyfus accusation, trial, punishment, and exoneration; the recent release after conviction and imprisonment of “Ivan the Terrible” Demjanjuk, and the famous miscarriage of justice in the case of the “Scottsboro Boys.” (As an aside, when I was so young that I could not quite understand the meaning of the Scottsboro boys' trial and conviction, I remember the street demonstrations and torchlight parades in my community and the marchers shouting, “The Scottsboro boys shall not die!” Fortunately, they did not [Page xiv]die, even though eight of the nine black youths were initially sentenced to death for the rapes of two white girls—rapes that never occurred and that were later recanted.) Some readers may also remember the Leo Frank conviction and his lynching by a mob while in custody. More recently, there have been the sagas of Randall Adams and the Jacksons. But hardly anyone is likely to know much about Isidore Zimmerman, his 24 years in prison, the commutation of his sentence 2 hours before execution, his 20 subsequent years spent seeking compensation after his prison release, and his death shortly after receiving $1 million for wrongful imprisonment.

One of the major contributions of this volume is the attempt to get at some sort of reliable estimate of the incidence of wrongful conviction in the United States per annum. Based on a questionnaire submitted to experienced criminal justice actors in Ohio—police administrators, sheriffs, county prosecutors, public defenders, and criminal court bench judges—0.5% of those convicted of felonies are estimated to be innocent of the crimes charged. The authors are quick to point out that these more than 10,000 convicted innocents (index crimes alone) were not necessarily without previous criminal involvement. Indeed, for some, their prior records may have led to their arrest and conviction.

Assuming the accuracy, or even near reliability, of the above estimate, there are many prisoners who have served or are serving time who might well be the subjects of a subsequent book on the innocent but “guilty.” The question, then, is why innocents, whatever their actual number, are found guilty. Why does our cherished due process obstacle course flatten into a straightaway? What happens to all the hurdles?

The authors contend that although becoming legally guilty though factually innocent is the result of interaction among several factors, faulty eyewitness identification is the most critical of these variables and alone accounts for as many as half of all erroneous findings of legal guilt. Experiments have shown that race and ethnicity are also crucial in eyewitness mistakes; so are physical conditions such as lighting, angle of sight, and length of observation. These errors, in themselves, are usually insufficient in the face of diligent investigation; however, when coupled with overzealousness, biases, and ineptitude on the part of some police officers, lawyers, and prosecutors, and pressure for convictions from the community and elected officials, erroneous eyewitness identifications are more than enough to convict.

[Page xv]Furthermore, in our criminal justice system, where the same actors may participate in many arrests, prosecutions, and trials over a number of years, there tend to develop interactional bonds that are hard to overcome. Thus, as the erroneous conviction case makes its way up the line, there is considerable reluctance to override the “evidence” and judgments made at the preceding levels. Instead of a hurdle, there is instead the “ratification of error.” This is no different from the working codes and internal cultures in other endeavors—medicine (as in malpractice), law, industry. Loyalty tends to override doubt and even experience. Cases are inexorably pushed forward.

The authors also include a chapter on the dynamics of obtaining and using doubtful (false) confessions. Faced with the possibility of going to trial for murder, and the uncertainty of the outcome, some defendants conclude (as may their public defenders or even their personal lawyers) that plea-bargained prison stretches are the safer option. There is also the possibility that a suspect's refusal to accept a plea bargain will influence the severity of his or her sentence—if convicted.

In the last chapter, the authors suggest public and professional consideration of 14 policy recommendations growing out of this decade of research. I will mention only the last one here, which pertains to irreversible errors. Huff, Rattner, and Sagarin suggest the substitution of life sentences, without the possibility of parole, in all death penalty cases. Some of their other recommendations are no less interesting and controversial. All are worth your consideration and the consideration of lawmakers on the judiciary committees in legislatures around the country.