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Outside the Box: Wrongful convictions cost American taxpayers hundreds of millions of dollars a year. Wrongdoing prosecutors must be held accountable.

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Prosecutors announced earlier this week that they were dropping all charges against Adnan Syed, a few weeks after his murder conviction was thrown out by a judge. The news from Baltimore garnered headlines nationwide, almost a decade after the case initially gained notoriety on the podcast “Serial.” 

Yet what led to the overturned conviction is something that didn’t grab as many headlines, but happens far too frequently in prosecutor’s offices nationwide: the failure by prosecutors to turn over critical exculpatory evidence that could influence the outcome of a case and the ability of the person charged with a crime to defend themselves. That failure is one that should be of concern to all who value the integrity of our criminal legal system.

Given the vastness of America’s carceral system, even the most conservative estimates suggest that tens of thousands of innocent people are incarcerated, costing U.S. taxpayers hundreds of millions of dollars each year. This also means that tens of thousands of people are not being held accountable for the harm they’ve caused to the community. And every dollar spent convicting and incarcerating the wrong people is a dollar that can’t be used to prevent, investigate and prosecute serious crimes.

“ Rates of official misconduct are highest for the most serious crimes .”

According to a report from the National Registry of Exonerations, concealed exculpatory evidence is the most common type of official misconduct driving wrongful convictions, having played a role in 44% of cases that resulted in an exoneration through 2019. Rates of official misconduct are highest for the most serious crimes — when the pressure to secure a conviction is greater and the consequences of a wrongful conviction are most severe. 

We don’t know exactly how many people sitting in our nation’s prisons and jails today are innocent, but credible estimates range from 1% to as high as 6%, and they are likely to be disproportionately people of color. Black people account for just 13.6% of the U.S. population, but an astounding 53% of exonerees.

Despite the deeply disturbing consequences and immense costs of wrongful convictions, prosecutors are almost never held accountable for their role in convicting the innocent. Of known exonerations that involved prosecutorial misconduct, discipline was only issued in 4% of cases, and for the most part, it was relatively lenient. Even police — generally known to evade accountability for misconduct — are disciplined more than six times as often as prosecutors for their role in wrongful convictions.

While wrongful convictions are far too common, the innocent often have little legal recourse to uncover government misconduct or address injustices in their cases. In Syed’s case, and after years of attempts to prove his innocence came up short, Syed thought his best chance at freedom was a new state law allowing the resentencing of people who committed crimes as teenagers and served more than 20 years. 

During the 23 years Syed spent in prison — and the eight since Serial made him an international sensation — the exculpatory evidence that led the judge to overturn his conviction was sitting, buried, in a prosecutor’s file.

That is until Becky Feldman — a former public defender — was hired by Baltimore City State’s Attorney Marilyn Mosby at the end of 2020 to head her office’s newly created Sentencing Review Unit. The office agreed to review Syed’s resentencing petition, which led to a yearlong investigation, through which Feldman helped uncover undisclosed evidence, including handwritten notes from the original prosecutor who tried the case suggesting two other potential suspects. 

It is undeniable that if these crucial details had been shared during the initial trial, as they should have been, the jury may have had reasonable doubt about Syed’s culpability. In announcing the dropped charges, prosecutors also shared that a new analysis of DNA found on the shoes of victim Hae Min Lee was not a match for Syed and they officially declared him “wrongfully convicted.” 

Baltimore is just one of the jurisdictions nationwide where reform-minded prosecutors have prioritized creating and utilizing post-conviction justice units to correct mistakes of the past. These units are making a difference. As of September 2022, Brooklyn’s Conviction Review Unit has exonerated more than 500 people, including 468 related to the misconduct of 14 police officers. In Philadelphia, 29 people — who served a collective 573 years behind bars — have been exonerated, all but three under the leadership of District Attorney Larry Krasner. In Chicago, State’s Attorney Kim Foxx has helped vacate 220 cases connected to a disgraced former cop.

Yet while tens of thousands of innocent people likely sit behind bars, there are just 95 established Conviction Integrity Units out of more than 2,300 prosecutor offices nationwide. Just 42 have actually recorded an exoneration.

This needs to change. In addition to creating post-conviction justice units, elected prosecutors need to redefine how success is measured in their offices. In too many offices, success (and advancement in the office) has been measured by how many convictions a prosecutor racks up, incentivizing winning at any cost necessary. With this starting point and incentives structure, the obligation to pursue justice can get left behind. 

Fortunately, reform-minded prosecutors are recalibrating how they measure success, using new metrics to track progress across areas including reducing racial disparities, supporting victims, minimizing unnecessary incarceration and prioritizing prosecutorial ethics. They’re also making that data public, unlocking the black-box of prosecution and telling their communities how they are using their limited resources. These are positive steps forward.

“ Too many prosecutors’ offices still have no vehicle to review past mistakes, let alone learn from them. ”

But a system that continues to convict and incarcerate the innocent is not one that lives up to the ideal of justice for all. Too many prosecutors’ offices still have no vehicle to review past mistakes, let alone learn from them. Without discovering and correcting miscarriages of justice, how can prosecutors ensure that the same errors do not keep playing out over and over again? And those errors come at great human and fiscal cost to all of us. 

The power to take away another person’s freedom is an immense responsibility. With that responsibility comes the imperative to correct and learn from past mistakes, with due recognition of the devastating consequences when these ideals are not met. 

Miriam Krinsky is the executive director of Fair and Just Prosecution and the author of Change from Within: Reimagining the 21st-Century Prosecutor. Alyssa Kress is the communications director at Fair and Just Prosecution. 

More: The opioid epidemic is costing us $1.5 trillion a year. And we’re spending peanuts to fight it.

Also read: Courts have ruled that sentencing kids to die in prison is cruel and unusual. Now they’re reconsidering when adulthood starts. 

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