Mass protests against police violence, racism, and a lack of accountability have generated promises of change in states and cities around the country. The Minneapolis City Council, for example, has pledged to replace its police department with a public safety department; and in Los Angeles, Mayor Eric Garcetti redirected roughly $150 million from the police budget to support disadvantaged communities and communities of color.
While these are encouraging signs, former New York City public defender Jessica S. Henry argues that police reforms alone will not solve the deeper problems of our legal system. In her new book, Smoke But No Fire, Henry focuses on the prevalence of “no-crime” wrongful convictions, which she calls an example of how prosecutors and judges face little accountability for their actions.
In a recent conversation with The Crime Report, Henry, now an associate professor at the Department of Justice Studies at Montclair State University in New Jersey, discussed how the present system is “stacked” against the poor, why appeals courts are reluctant to overturn wrongful convictions, and why prosecutors should lose the “absolute immunity” that protects them against mistakes.
The following transcript has been edited for space and clarity.
The Crime Report: Why did you decide to leave public defending and move to the academic side of the legal field?
Jessica Henry: I fell in love with criminology and criminal law in college. I was one of those students who would do the extra readings on reserve that no one’s ever checked out. So, after practicing for ten years, doing both appellate work and trial work, I was presented with this opportunity at Montclair State University and I thought how lucky I was to have the opportunity to think and talk and write about these things that I love. I loved being a public defender, but I also love being a professor who gets to talk to students about something I feel so passionately about. And my students are justice studies students; many of them are interested in going into law enforcement, law, government, or social work; and if I have the opportunity to help shape their understanding of the criminal justice system, that’s amazing. What a gift that is.
TCR: How did you come to write this book?
JH: I teach a course on wrongful convictions. I was doing research for the class and I noticed that, in the national registry of exonerations, one-third of all the cases in the database were no- crime wrongful convictions. I thought I read it wrong, so I actually emailed them to check if this was correct and, sure enough, over one-third of all known exonerations involve people who were convicted of crimes that never happened. When I saw that statistic, I knew I had to learn more. I couldn’t get my head around the idea that our government is spending time and energy prosecuting people for crimes that never happened.
TCR: Your book points out that, when it comes to the process of catching and trying criminals, our society places a great deal of initial trust in the police and their ability to detect the truth. Why is that trust misguided?
JH: We look to the police when they’re making an arrest to decide what happened based on what the complainant is saying and on the information they might get from the person they’ve arrested. And police have a tremendous confidence in their ability to tell who’s lying. But, in reality, studies have shown that police officers are no better than a coin toss in determining truth- telling.
We also look to things like lie detectors and, again, those are not particularly adept at revealing who’s telling the truth and who’s lying. And that really matters, because if you have a person who is telling falsehoods, for whatever reason, you can wind up with a false accusation being converted into a criminal case.
TCR: But while the issue of police reform is currently earning national attention, and most of the blame, your book reveals that the police are really just the tip of the iceberg.
JH: The police only need probable cause to arrest somebody; and when they make that arrest, the case goes to the prosecutor, who then has the ability to decide whether or not to pursue the case. But prosecutors often don’t use that discretion. Instead, they rely on whatever the police claim is the case. Because of the prevalence of plea bargaining, that can make the police the arbiters of both who gets arrested and who gets convicted.
So, if everyone is pleading guilty, and the prosecutors aren’t doing their jobs and screening cases, then whatever the police say often stands. That’s a huge problem. You also have a prosecutorial mentality that prioritizes gaining convictions as the win, as opposed to seeking justice; and prosecutors will take all kinds of measures to secure those convictions. We’ve seen this time and again in cases that involve even the death penalty, where prosecutors played fast and loose with evidence, used unreliable informants, and introduced forensic evidence that was shaky at best, all in the name of getting convictions.
TCR: What part do defense attorneys play in this problem?
JH: There are two prongs here. The first is that even the most committed, dedicated, and die- hard public defenders out there are often drowning in caseloads that are simply unacceptable. In the book, I describe how in some jurisdictions lawyers meet with their clients for literally less than seven minutes total to resolve a case. You can barely get through an introduction in seven minutes. And lawyers who represent the poor are often hamstrung by a lack of resources. If they need to hire an expert, they often don’t have the funding to do that.
There are many ways in which they are constantly behind the eight ball, trying to advocate for their clients in a system that’s just stacked against poor defendants. Then, of course, there are some criminal defense lawyers who don’t do their jobs well, and poor defendants are stuck with whoever gets assigned to them. Again and again, we see the criminal justice system reinforcing divisions that come from poverty.
TCR: What are some of the other ways that this problem disproportionately affects the poor?
JH: There are a lot of issues around pretrial detention and bail reform, and all of these factors relate to each other. That is one of the things that I wanted to highlight in the book. We can’t just blame any one aspect of the system, it’s how the system works as a whole that is problematic. Pretrial detention, or holding people in prison or jail because they can’t make bail, is a huge problem. What we’ve learned is that many people do not need to be detained while they’re waiting for their case to be resolved. But so many poor people will wind up pleading guilty to crimes that they not only didn’t do, but that actually didn’t happen, just because they want to go home.
That has tremendous consequences for the rest of their lives. Having a criminal conviction is something that can haunt a person forever, even for a misdemeanor crime.
TCR: What are some of the misconceptions of our justice system and the dangers that result from them?
JH: One of the things I often think about is that we have tremendous confidence in outcomes in the criminal justice system, and we love to say the prosecution has a “high burden of proof” to prove its case beyond a reasonable doubt.
But “beyond a reasonable doubt” does not mean beyond all doubt or a 100 percent certainty. What it means is that we have built into our criminal justice system the possibility of error; and yet we do not have a particularly robust way of correcting error.
Our appellate courts are so loath to overturn convictions based on claims of factual innocence, that it takes years for these types of innocence claims to ever be considered. That’s a huge problem. We have been sold a bill of goods when it comes to the way the criminal justice system addresses “crime,” and so many things that pull people into that system are minor and could often be viewed as not criminal at all.
I go to great lengths in the book about trespass cases in New York City that were the subject of a major litigation. These folks didn’t do anything wrong and yet there was this pursuit of crime that animated a wholesale battle against poor people and people of color there.
TCR: Why do you feel there is such reticence, and sometimes even what seems to be a vindictive stubbornness, on the part of the courts to hear these cases of no-crime convictions or pursue any form of rehabilitation or correction of the system in response?
JH: Our appellate courts have a real interest in finality. I think that they often prioritize finality over looking for justice. It is this “fear of too much justice,” where they’re afraid that if they really start examining what’s going on in our legal system it may open the floodgates to endless challenges that the appellate systems aren’t equipped to handle.
But I think you also raise a really great question about what is the function and purpose of our criminal justice system, which then, in turn, goes back to some of the questions being raised today in the larger conversation about policing. Why are we so intent on defining certain behaviors as crimes and going out and policing, arresting and punishing people so punitively for those crimes? I wonder if there is a different way we could think about what is criminal in the first place.
TCR: You write that, much like with policing, there is very little accountability among attorneys. How do we make it easier to bring bad attorneys to call for these kinds of gross misappropriations of justice?
JH: In the context of prosecutors, one of the things that people don’t realize, and that is truly astonishing, is that there is absolute immunity for prosecutors for any wrongdoing they commit in the context of their official duties. So they could literally deliberately hide evidence that could exonerate somebody from the outset and not be held civilly liable because of this principle of absolute immunity.
Police officers are held to a standard of qualified immunity. That still makes it very difficult to hold officers responsible, but there is at least an avenue there. Prosecutors are completely immune. So one suggestion is to remove absolute immunity from prosecutors. If we give them qualified immunity, maybe we rethink how we define that term because even qualified immunity is very difficult to prove. Maybe we don’t have any immunity or a lower standard of immunity.
TCR: The 1963 Supreme Court case, Gideon v Wainwright, established the requirement of states to provide attorneys for people who cannot afford them. What’s the story behind that ruling and what are the shortcomings of the law?
JH: Gideon v Wainwright is one of my favorite cases. Gideon had been convicted of a bunch of petty stuff down in Florida. He gets picked up for robbing or burglarizing a pool hall and, while he had always pleaded guilty before, this time he insists that he’s innocent. He tells the court that he’d like a lawyer, and the court tells him that the only people entitled to lawyers are people charged with capital cases. He refuses to plead guilty, represents himself, and loses. He writes a handwritten letter to the U.S. Supreme Court, and says that he felt the Sixth Amendment guaranteed his right to counsel, that he asked for a lawyer and they wouldn’t give him one, and that’s not fair. And the Supreme Court agreed.
They took his case, appointed him one of the best lawyers in the country, won his appeal, and that’s how it came to be that poor people are now entitled to the appointment of counsel. This is a guy who may not have graduated high school and he changed the world.
But Gideon v Wainwright set a minimum standard. Since then, although a variety of Supreme Court cases have ruled that defendants are entitled to effective assistance of counsel, they have routinely upheld examples of terrible lawyering: lawyers who did no investigation, who were under investigation themselves for criminal behavior, who have slept through their cases. All of these types of cases have been deemed to have met the minimum standard for effective representation.
TCR: What are the structural issues facing the legal profession and how do they contribute to the kind of apathy and neglect that breeds misconduct?
JH: One of the things that happens in some jurisdictions is that defense lawyers are assigned to a specific courtroom with a specific judge. They learn pretty quickly that they have to go along to get along and that if they push too hard in one case, it might be to the detriment of a client in another case.
Which, of course, should never be how it works. Even in small courthouses with only a couple of judges, you learn quickly that if you push too hard you get labeled a troublemaker and that can hurt your clients in the long run and also make your personal life miserable. For example, the judge doesn’t call your case until the end of the day, and you’re stuck sitting around waiting for your case to be called. In some jurisdictions judges appoint the lawyers, and if you are known to be a lawyer who files all the right motions, and provides a really zealous advocacy for your client, a judge might choose not to appoint you because you’re taking up too much time doing your job correctly. These are structural issues that come up often.
TCR: How do you tackle and change the level of authority judges hold over the courts to the point where the fickleness of a judge can decide the course of someone’s life?
JH: Truthfully, there isn’t a great one-size-fits-all answer. I believe that appointed judges are better than elected judges because I have seen, time and again, in places where being tough on crime matters in an election year, judges who will go for the jugular to prove just how tough they are.
That’s highly problematic. Appointed judges should be, at least in theory, a little more insulated than elected judges. In addition, although judges are trained to sit on the bench, the quality of what they learn is something that needs to be looked at.
If we have judges that aren’t particularly well-versed in forensic science they’re going to let in junk evidence. If you have judges that aren’t aware of their own racial biases they’re going to allow those to affect their courtroom behaviors.
And if we did move to universally appointed judges, we also then need to create mechanisms that allow for the removal of judges who behave in outright bigoted ways, or in ways that subvert the idea of doing justice. It doesn’t have to be the way that it is.
TCR: Are there similar hurdles to finding an effective and justice minded jury?
JH: Not in every case, but I think that in general juries tend to get it right based on the evidence presented to them. I think where juries often go completely off the rails is when the evidence is bad. So if you’ve got a witness who’s lying, or a forensic expert telling exaggerated stories about the strength of the evidence, jurors aren’t very good at figuring out what to do with that. They tend to take it at face value. I do think many jurors do a good job. The problem can be that prosecutors routinely exclude people of color from jury service when there is a defendant of color. And that can skew jury outcomes considerably, and that of course should not be allowed and it’s unconstitutional to do so.
Here again we have this relationship where prosecutors are doing what they shouldn’t be doing—excluding people of color from the jury service. Defense lawyers should be objecting, and they sometimes don’t; and judges shouldn’t be allowing it, and they often do. So, in the context of creating fair and impartial juries, we need to do a better job of, at minimum, enforcing the existing standards.
And it gets much more complex. If you have an individual juror or jurors who bring their own bias or bigotry into the jury room, which does happen and is horrible and hard to control for, there is still an opportunity to explore people’s ideas about race and class and whatever other issues may be present in the case during questioning. But, again, those topics are often not explored explicitly.
TCR: Do you think the media does a disservice to the public by not addressing the complexities of these issues? Why do you think it’s so hard to clearly present just how big the problem is?
JH: We live in a society where the soundbite matters more than the complicated interwoven narrative that really helps us understand what’s happening in the criminal justice system. And one of the reasons I really enjoyed being able to write this book about no-crime wrongful convictions is because the subject itself is just so shocking. It’s a perfect way to really highlight how the system goes wrong at every turn.
I don’t want to say that the media is doing a disservice, but I think the problem is very difficult to capture in a 350-word or 500-word piece. It’s really difficult to wade through all of the ways that all of these actors are related to each other and all of these policy decisions impact each other. It’s overwhelming.
TCR: Are you optimistic about change?
JH: I am optimistic that this time in history provides us with a moment to do things differently and move forward differently. One of the reasons for my optimism is that states were actually starting to experiment a bit with reform anyway. Even before the protests, we saw states experimenting with bail reform.
The use of the death penalty was at an all-time low. New Jersey created a statewide Innocence Project. The prosecutors are part of the process and are saying they did do something wrong, they were responsible for convicting an innocent person, and they are figuring out how they can remedy that. That is a vision of justice very different from saying we have to obtain convictions at all costs.
Now is a great time to assess what we do and how we do it. Policing is in the forefront of that conversation, and there are some great ideas being circulated. Whether it’s demilitarizing police and having local police forces return some of the surplus military equipment provided to them over the last 20 years, or considering how we use the police and asking why they get assigned to animal patrol, homicides and everything in between, I think that national conversation is happening in ways that are really powerful.
But I also think there has to be a real commitment to achieving a cultural shift. Using policing as one small example, training needs to be different, officers need to not be told that they are warriors and soldiers with an enemy to fight. Instead, they should be reminded of their obligations as civil servants to the communities that they police.There’s a totally different mentality that needs to be brought up from the get-go. In the book I talk about the “blue wall of silence” and how, in training, officers are told that other officers are their brothers, [and to] protect them at all costs—loyalty to the brotherhood over all else. That’s reinforced from the top.
We need to have folks in power in the policing structures [willing to change] the culture within departments. They should be reinforcing the idea that officer misconduct is never acceptable and when you see an officer engaging in misconduct you have an obligation to step in and, if you don’t, there will be sanctions for that. There needs to be that kind of shift in leadership. Whether or not that will happen is a question.
Isidoro Rodriguez is a contributing editor to The Crime Report. He welcomes readers’ comments.