Innocent, Broke and without Hope

It might seem obvious what the costs of criminal conviction and incarceration are. A blot on your public record, seldom to be explained away or erased, that pretty much keeps you from ever having a well-paying job, often guaranteeing a lifetime of marginal employment and poverty that drives many back to criminal pursuits. Some states are trying to erase some of these felony records, but the process is slow, and Internet searches invariably produce the same historical facts anyway. While incarcerated, the prisoner is also clearly not earning a living, so if there are any lives of family members that need to be supported, forgetaboutit.

Think of the hard time, the misery, the assaults, gangs, violence, noise, lack of privacy, terrible food, feelings of dread and hopelessness, the foul smells that just become normal, the screams of the desperate and the mentally ill. It’s all bad. Look at the need to plead guilty to avoid a system that eats impoverished defendants for breakfast puts people in prison for crimes they did not commit. Juries assume. Prosecutors are persuasive and occasionally dishonest to get a conviction. Hiding exculpatory evidence, which they really are not allowed to do. As the scandal raging currently through the Los Angeles Police Department illustrates, cops are often not above planting evidence or adding false statements to police reports. And sentences for those with the guts to fight for their innocence are vastly longer than those who accept a plea. Overworked public defenders, often meeting their clients for the first time in the courtroom, cannot guarantee justice.

It is worse when the penalty is a death sentence. In a 2014, Samuel R. Gross, a law professor at the University of Michigan, coauthored a study published in the Proceedings of the National Academy of Sciences. That study provided that 4.1 percent of defendants who are sentenced to death in the United States are later shown to be innocent: 1 in 25. Think of what it must feel like on death row, believing that in spite of all the appeals that are built-in to death sentence cases, sooner or later you will be taken to the death chamber and killed… for something you did not do.

With a criminal justice system cracking at the seams, even with releases for marijuana convictions lightening the load in some venues, there is a very strong pressure to keep things from having to be tried or reexamined in court. Plea bargains are quick and do not tax the system. Making it exceptionally difficult to introduce new evidence or look back on clearly unfair trials or pleas to bring to a judge for a rehearing reduces the strain on the judicial system and keeps the courts available for new cases. The result? The harsh reality is institutionalized unfairness. But we simply put too many people in prison. With 5% of the world’s population, we house 25% of the world’s incarcerated prisoners. A horrible record with absolutely no justification. Our judges are just too busy to correct their mistakes.

What happened to fair trials? If you don’t have the money to afford competent counsel, it does seem that it is prosecutor becomes the decider. Not the judge and certainly not a jury. So few cases make their way to trial. The American Bar Association, of which I am a member, recently took up the cause of what recourse wrongfully convicted felons have against the system that put them behind bars. Their lives in tatters, often after many years in prison, so many wrongfully convicted people are often released with little more than the property they had with them when they first entered the prison system, a bus ticket and some pocket change.

The ABA has asked the Supreme Court to clarify their “1994 ruling in Heck v. Humphrey, which essentially held an individual may not recover damages for any period of allegedly unconstitutional incarceration that is supported by a valid or unchallenged conviction or sentence.” ABA Journal (January 20^th). This would address plea bargains and perhaps convictions that simply were not appealed. But what is “unconstitutional” in this context. What is a “valid” conviction? Very ambiguous, but Heck is often used by courts to deny wrongfully convicted individuals from getting damages for the years they spent behind bars.

The ABA has filed an amicus brief in the request of just such a wrongfully convicted plaintiff for a Supreme Court review. That Court cannot be forced to review cases with rare exceptions. The case at bar is Louis Taylor v. County of Pima; City of Tucson. Here is the ABA’s reasoning, as reported in its weekly Journal (noted above): Taylor, who is black, was 16 when he was accused of setting a fire in the Pioneer Hotel in Tucson, Arizona that killed 29 people in 1970. Even though he denied involvement in the fire, he was convicted of 28 counts of murder in Pima County and sentenced to life in prison.

According to the ABA’s brief, it was discovered four decades later that the prosecution suppressed an expert report finding that no accelerant had been used in the fire, which contradicted the theory behind Taylor’s conviction and the testimony of two primary witnesses who pointed to arson as the cause. An Arson Review Committee also found in 2006 that there was no scientific basis behind classifying the Pioneer Hotel fire as an arson.

Even though Pima County recognized it could not retry Taylor, it refused to vacate his conviction unless he pleaded “no contest” to his time served. He agreed to the condition and was released in 2013.

“Taylor, who had professed his innocence for four decades, felt he ‘had no choice’ but to agree: after forty-two years, the prospect of spending ‘another minute, another hour, another decade’ in prison was unbearable,” the ABA wrote in its brief.

Taylor filed a lawsuit against Pima County and the city of Tucson, alleging violations of his constitutional rights to due process and a fair trial. The district court held that the Supreme Court’s decision in Heck barred his recovery, and the San Francisco-based 9th U.S. Circuit Court of Appeals affirmed.

“Here, Taylor’s 1972 jury conviction has been vacated by the state court, so Heck poses no bar to a challenge to that conviction or the resulting sentence,” the 9th Circuit said in its opinion. “But Taylor’s 2013 conviction, following his plea of no contest, remains valid.”

That ABA said in its brief that the issue presented in this case—“whether a state or local jurisdiction may avoid paying civil damages by conditioning the release of a person whose conviction has been shown to be unlawful on a new plea and thus insulating themselves under a broad (and incorrect) reading of Heck—is of exceptional importance.

“It is critical to the integrity of our prosecutorial system that pleas be free from coercion, particularly where a defendant is incarcerated pursuant to a conviction that the prosecutor’s office itself acknowledges can no longer be sustained.”

What is our obligation to justice, to correct obvious government wrongs that have destroyed human lives? Those at the top of the food chain might believe that they could shoot someone on Fifth Avenue in New York City and get away with it, but for too many at the other of the economic spectrum, they can go to prison for crimes they did not commit. Time to stop this incredible distortion of our criminal justice system. Now!

              I’m Peter Dekom, and as long as Americans stay quiet and complacent about serious governmental unfairness, the system will just continue to get worse… and there, but for the Grace of God, go you!