There’s good reason to think that many of those convicted of misdemeanors are innocent, according to Samuel Gross, the editor of the National Registry of Exonerations project.
In a paper published in the Boston University Law Review, Gross claims that there is no way to know how many wrongful misdemeanor convictions have occurred because of the difficulty of detection and the lack of data on the subject. About 13.2 million misdemeanor cases are filed annually, but no estimates exist for how many yield convictions, let alone how many of those convictions might be false.
To date, the National Registry of Exonerations, a project that seeks to track false convictions to prevent future errors, has tallied 85 misdemeanor exonerations in the last 29 years – about four percent of the total 2,145 exonerations since 1989, the rest of which are felonies.
But this low count is not to say that misdemeanor false convictions are less common than felony false convictions. The exonerations are simply more unlikely.
The most typical misdemeanor exonerations, which take place an average of 1.7 years after conviction, are for drug possession – 58 out of the total 85 counted by the Registry. All but one of these exonerations took place in Harris County, Texas.
This is not due to some particular concentration of bogus drug busts in Harris County, according to Gross. Rather, Harris County is the only jurisdiction in the country with a crime lab that regularly tests substances thought to be illegal drugs after the suspects carrying them have already been charged and pled guilty. In most jurisdictions, drug arrests are based on cheap, error-prone field tests, and should the defendant plead guilty to the charge, no further testing occurs.
It is not difficult to imagine, then, that many people convicted of misdemeanor drug possession might in fact be innocent and never get the chance to clear their names.
Gross recounts the stories of two people wrongfully convicted of other misdemeanors who were later cleared of all charges to illustrate just how implausible exoneration is.
In both cases, he writes, “the police placed the crime-scene DNA profiles for these cases in government databases even though the cases had been closed by arrest and conviction, and the real criminals’ DNA profiles ended up in the same databases because they were convicted of other crimes, and the crime-scene profiles were matched by database software to the real criminals’ profiles, and the police were notified and, in turn, notified the prosecutors who contacted the defendants and secured exonerations.”
“That’s a pretty improbable deus ex machina.”
In the majority of misdemeanor exoneration cases, the defendant was convicted after accepting a plea deal.
“Plea bargaining is the great American method of sweeping problems in criminal cases under the rug,” Gross writes. “The defendant’s constitutional rights were violated? No problem; offer him a good enough deal, he’ll plead guilty, and that’ll be the end of it. The evidence of guilt stinks? If you reduce the charges enough he’ll probably go for it, and we’ll never have to present any evidence.”
But if defendants know they are innocent, why would they plead guilty? In most cases, Gross says, a plea bargain is the quickest route home.
“In the usual case, the defendant had a criminal record. As a result, bail was too high for him to make. If he pled not guilty, he’d wait months for a trial, in jail – and then might be sentenced to years in prison if convicted,” he writes.
“It’s not surprise that given the choice, many pled guilty and went home within days or weeks, or immediately.”
While guilty pleas get defendants out of jail more quickly, they also create an additional obstacle to exoneration: “It’s easier to persuade people that you’re innocent if you’ve never admitted to being guilty.”
Gross says that with the little data that exists, there is no telling how many people live with the consequences of conviction for a crime they never committed – something that should give all actors in the justice system pause.