I teach a course on imprisonment and reentry and I dispense with the crime issue relatively quickly. We talk about the contribution of ex-inmates to the crime rate and high recidivism rates overall but we don’t talk a lot about it until the end of the course. We RARELY talk about innocence — the best estimate I’ve seen (not Scalia’s, btw) suggests that about 3-5% of capital rape-murder convictions involve the factually innocent. Extrapolating from that (and conceding that it’s hard to figure out whether the innocence problem is larger or smaller in less serious cases that involve no biological evidence), let’s assume that fully 10% of people in prison are factually innocent. This is probably a [very?] large overestimate, but, in any case, it also assumes that the vast majority of people in prison did it. The course is implicitly designed around this assumption.
Jump forward to my course on the criminal justice system. The first part of the course deals with rights — the assumption in these discussions being that we must extend rights (against unreasonable search and seizure for example) to the worst among us, lest we all be violated. Underlying much of this is also the idea that it is better to let the guilty go free than to convict the innocent. All this presents a problem when we get to the back-end portion of the system — racial disparities in imprisonment are appalling, recidivism rates are through the roof, and punishment beyond the sentence (e.g., laws that bar ex-felons from certain jobs, voting, public assistance, college loans, any law involving sex offenders, and so on) is the order of the day.
The question I want my students in both courses to ask is not whether or not prisons are full of innocent people, but whether or not imprisonment at its current levels is an efficient, fair, or moral way to deal with crime. I’d also like them to get a sense of the disparities in who does crime and who gets arrested and punished for crime. [And, if I’m being really honest, I also suggest to them that not as much of current punishment policy has to do with crime per se as they would like to think].
All of this suggests to me that the innocence movement has another problem beyond the CSI effect.* I’m much more concerned about over-punishment (and I’m not the only one, apparently) and the emphasis on factual innocence might give people the impression that the way we treat those who DID do it is okay (read: efficient, moral, fair, good for crime control, etc).
*The CSI effect as I understand it being that DNA exonerations have the unintended consequence of reducing acquittals by raising the expectations of jurors and crime victims to expect factual innocence (he didn’t do it), rather than legal innocence (we can’t prove he did it).