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      Why Are There Up to 120,000 Innocent People in US Prisons?

      Why Are There Up to 120,000 Innocent People in US Prisons? Why Are There Up to 120,000 Innocent People in US Prisons? Why Are There Up to 120,000 Innocent People in US Prisons?
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      Criminal Justice

      Why Are There Up to 120,000 Innocent People in US Prisons?

      By Justin Rohrlich

      This article is part of VICE News' partnership with the American Justice Summit.

      The door to the interrogation room at the 24th Precinct opened, and 14-year-old Raymond Santana watched as a group of detectives from the Manhattan North Homicide Squad filed in. Santana had been one of five teenagers picked up in Central Park earlier that evening in connection with a handful of misdemeanors. The group was accused of "wilding" — throwing rocks, harassing people, even knocking a man unconscious who'd been riding a tandem bicycle with his wife.

      But that's not what the detectives wanted to talk to Santana about.

      "They said they found a jogger in the park," Santana tells me, recalling the night of April 19, 1989. Across town at Metropolitan Hospital, a 28-year-old woman was in a coma. "She had lost so much blood, they said they didn't think she was going to survive."

      As the hours wore on, Santana began to crumble. He was exhausted, hungry, and scared shitless. The police, pistols on their hips, were yelling at him. One sat inches away from Santana and screamed in his ear, "You know you fucking did it! You know you raped her!" Another banged the desk and lunged at Santana, who says he was convinced he was about to die. That's when a detective named Hartigan jumped in, appearing to restrain the others. "I felt like, Wow — this guy just saved my life," Santana says.

      Hartigan told the others to take a walk, and sat down to speak with Santana one on one.

      "'Ray, you're a good kid, I know you didn't do this,'" Santana says he remembers Hartigan saying. "'But the others are saying it was you. I know it wasn't you, Ray, so I need you to help me out here.'"

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      A 1969 Supreme Court ruling made it legal for cops to lie to suspects in pursuit of confessions, and Hartigan took full advantage. He said two of the other kids, 14-year-old Kevin Richardson and 15-year-old Antron McCray, were obviously the rapist and accomplice — but that the two of them were pointing the finger at Santana. He said he had nothing to do with it, then lied, telling Hartigan they were the ones who'd done it. And when Hartigan suggested alleged ringleader Steven Lopez, 15, beat the jogger with a brick, Santana lied again, saying he had seen it happen. Santana told Hartigan he was watching from a distance, which Hartigan didn't like. How had Santana seen everything he was describing, Hartigan wondered, if he was standing so far away?

      "He keeps telling me, 'C'mon, Ray, you gotta help me out here,'" Santana says. "So I say, 'All right, I was right there.' And now I've just placed myself at the scene."

      Santana felt he was "helping" Hartigan. To that end, he added a final flourish, telling the detective that he had not only watched, but grabbed the jogger's breasts at one point.

      "He slides something over for me to sign," Santana says. "Then he tells me to go see this other officer and tell him exactly what I just told him. So I do. No lawyer, no parent, no nothing."

      And that's how you confess to a crime you didn't commit.

      * * *

      Elizabeth Lederer, the Assistant District Attorney handling the prosecution, called the infamous 1989 attack on the woman who came to be known as the Central Park Jogger "one of the most vicious and brutal crimes in the history of New York." Mayor Ed Koch dubbed it "the crime of the century." Donald Trump took out full-page ads in newspapers demanding the death penalty.

      I was 18 at the time, and lived only a few blocks away from the police station where Santana confessed. I remember watching the perp walks on the local news and thinking, They confessed? Then of course they did it.

      Except they didn't. The boys who would come to be known as the Central Park Five were tried and convicted despite a lack of any witnesses, five wildly different "confessions" that didn't match up, and DNA evidence that didn't belong to any of them. Santana served more than seven years.

      'The system isn't geared to discover innocence or guilt — it's geared to get people through the system as quickly and efficiently as possible.'

      Guilty pleas and false confessions by the innocent are counterintuitive phenomena, says Rebecca Brown, director of state policy at the non-profit Innocence Project. But of the 321 DNA exonerations that have occurred in the United States, 30 have involved people who originally pled guilty to crimes they didn't commit. It's hard to accept that people who are innocent would knowingly incriminate themselves, but it happens frequently.

      "Our cases are almost exclusively rapes and murders — very, very serious crimes — and even then, innocent people are pleading guilty," Brown says. "Now spread that out across the entire system to include lower-level offenses, the vast majority of which are pled out, and the implications are clear."

      According to the Innocence Project's estimates, between 2.3 percent and 5 percent of all US prisoners are innocent. The American prison population numbers about 2.4 million. Using those numbers, as many as 120,000 innocent people could currently be in prison.

      * * *

      During the first half of the 20th century and into the second, the incarceration rate in America hovered around 100 people per every 100,000. Then politicians decided to get "tough on crime." By 1996 there were 427 imprisoned for every 100,000. Today, there are about 707.

      Thanks to the "criminalization of everything," almost three times as many felony cases enter the court system today as they did 25 years ago. If every one of those cases went to trial, the justice system would quickly collapse under the load. Thus, more than 96 percent of all cases end in a plea bargain.

      "The system isn't geared to discover innocence or guilt — it's geared to get people through the system as quickly and efficiently as possible," says John Pollok, a defense lawyer who has defended clients ranging from the mayor of Waterbury, Connecticut to members of the Gambino crime family. "What it comes down to for a defense lawyer is really to try and minimize harm."

      Overwhelmingly, minimizing harm means taking a deal instead of taking your chances at trial. And just as false confessions lead to false convictions, coercive plea bargains are also responsible for sending thousands of innocent people to prison.

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      "Everybody swallows the lie because they want to believe that the system works," Pollok says. "The short of it is, each component of the system, from lawyers to judges to the way we charge people, is broken."

      As federal judge Jed Rakoff wrote recently in the New York Review of Books, "The Supreme Court's suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: It is much more like a 'contract of adhesion' in which one party can effectively force its will on the other party."

      Rakoff tells me there are too many variables involved to pin down precisely how many innocent people are in prison, but he says criminologists peg the rate at which innocent people confess to crimes during plea bargains between 2 percent and 8 percent. A spread that wide rightfully raises suspicions, and so Rakoff chooses to instead use an extremely conservative estimate of 1 percent. Even then, that puts up to 20,000 people behind bars for crimes they did not commit due to pressure to accept pleas.

      "We know for a fact that there are innocent people taking pleas and going to prison," Rakoff says. "That's not conjecture."

      No one can be forced to accept a plea bargain; the right to a trial is guaranteed by the US Constitution. However, a pernicious phenomenon called the "trial penalty" dissuades many defendants from exercising it. The federal conviction rate is an astonishing 97 percent, and studies have shown that defendants who refuse plea bargains are put behind bars for roughly nine times as long as those who take deals. (Twelve of the inmates exonerated by the Innocence Project were threatened with the death penalty before deciding to plead guilty.) As one former US Attorney told Human Rights Watch (HRW) last year, "If you reject the plea, we'll throw everything at you. We won't think about what is a 'just' sentence."

      When Sandra Avery was caught with 50 grams of crack cocaine, prosecutors offered her a 10-year sentence if she agreed to plead guilty. Avery decided to take her chances at trial, and was promptly convicted, after which prosecutors "threw everything" at her by invoking Avery's three previous convictions for possession. The total value of the drugs Avery had been caught with in the previous three cases amounted to less than $100, but because Avery had three priors, she was sentenced to life in prison. There is no parole in the federal system. Avery will die behind bars.

      Darlene Eckles, a nursing assistant with a clean record, agreed to let her brother stay with her after he got out of prison. She protested when he began dealing crack from her home, and finally kicked him out six months later. When the brother was later arrested on federal drug trafficking charges, Eckles got picked up too. Like Avery, Eckles refused to plead guilty, and went to trial. Although the jury convicted her on lesser charges that did not carry a mandatory minimum, prosecutors argued Eckles was every bit as responsible as her brother. The judge sentenced her to 19 years and seven months in prison.

      Her brother, who pled guilty, got 11 years and eight months.

      Weldon Angelos sold $350 worth of marijuana to a confidential informant, who claimed that the 22-year-old Angelos was armed with a gun during two of the transactions. After Angelos was arrested, police found 3 pounds of pot and three guns during a search of his apartment. There was no evidence the guns had ever been fired or used to threaten someone else. Prosecutors offered Angelos 10 years for the weed, and five years for the guns. Angelos declined, opting for a trial. Prosecutors responded by filing a superseding indictment that stacked five new charges on top of the existing ones. Angelos was convicted and sentenced to 55 years in federal prison. He will be nearly 80 years old when he is released.

      * * *

      The fact that innocent people get caught up in the system is indeed unconscionable, says JoAnne Page, president and CEO of the Fortune Society, a New York City-based nonprofit that helps the formerly incarcerated rebuild their lives after release. "But," she tells me, "the norm is pretty horrible, too."

      "We are crippling entire generations of people," Page says. "Our punishments are out of line with the crimes and with any other society's version of what is reasonable. And then when people get out, we don't stop the punishment."

      Raymond Santana earned his associate's degree during his seven-plus years in prison, and came out in 1998 hopeful for a fresh start. But no one would give Santana a job; all anyone saw when they looked at him was a monster who wasn't allowed to live within 1,000 feet of a school.

      'Many police agencies already voluntarily record interrogations, but we need to make it uniform practice. One prosecutor said it was the best reform that was ever crammed down his throat.'

      "I was a registered sex offender," Santana says. "They released my photograph, I had a 7 o'clock curfew, everyone knew me as a sex offender — and I was innocent. Even my own family looked at me funny, kind of second-guessing, like, 'Maybe he really did do it.'"

      In 2002, a man named Matias Reyes confessed to the Central Park jogger attack, claiming his newfound Christian faith compelled him to come clean. Reyes, a serial rapist, was already serving a sentence of 33 1/3 years to life for raping four women (he stabbed one to death while her three children listened in the other room). DNA evidence originally overlooked by prosecutors proved a positive match for Reyes, who insisted to police that he had acted alone. Manhattan District Attorney Robert Morgenthau recommended the convictions of Santana and the others be vacated, and New York Supreme Court Justice Charles Tejada formally dismissed them a short time later. Santana, who had been denied parole in 1994 because he would not accept responsibility for his "crime," had finally been vindicated.

      So he thought. A City Hall spokeswoman insisted the vacated convictions did not mean the boys — by now, young men — were innocent. The New York Post and the Daily News ran strident editorials arguing against the decision. A report commissioned by the NYPD concluded, "Our examination of the facts leads us to suggest that there is an alternative theory of the attack upon the jogger, that both the defendants and Reyes assaulted her, perhaps successively."

      In 2003, lawyers for the Central Park Five filed a $250 million lawsuit against the city, charging that the boys had been denied their civil rights in a "deliberate and unjustified" way. The Bloomberg administration fought to have the suit dismissed. After four years of legal wrangling, US District Court Judge Deborah Batts allowed it to proceed in 2007.

      In September 2014, eleven years after the lawsuit was filed, New York City Mayor Bill de Blasio formally rescinded the city's opposition to the case, and approved a settlement awarding each of the Central Park Five about $1 million for every year they spent in prison. Santana received $7.125 million. The city, for its part, considered itself blameless.

      "This agreement should not be construed as an acknowledgment that the convictions of these five plaintiffs were the result of law enforcement misconduct," the head of the New York City Law Department said in a statement. "On the contrary, our review of the record suggests that both the investigating detectives and the Assistant District Attorneys involved in the case acted reasonably, given the circumstances with which they were confronted on April 19, 1989 and thereafter."

      * * *

      In his recent NYRB piece, Rakoff said plea bargains and mandatory minimums have made the American criminal justice system unfair, opaque, and in some instances, borderline unconstitutional. Although gathering the necessary political capital will be a challenge, Rakoff would like to see the demise of mandatory minimums, which he says have concentrated an inordinate amount of power in the hands of prosecutors. If a prosecutor can't browbeat a defendant into a plea bargain with the threat of the death penalty or a disproportionately draconian prison term, judges could regain some of the discretion in sentencing they are meant to have, and the system might find at least a modicum of equilibrium.

      "I was a US Attorney in the Southern District of New York before mandatory minimums were introduced in the 1980s as a reaction to increased crime rates," Rakoff tells me. "It was office policy never to take a position on sentencing. Sentencing was for the judge, not the prosecutor."

      There is agreement on both the political left and right that the modern American criminal justice system has become far more punitive than anyone ever expected. But that doesn't mean anything will change. Earlier this year, Attorney General Eric Holder urged Congress to pass the Smarter Sentencing Act, a bipartisan bill that would reform federal mandatory minimums.

      "Our criminal justice system works only when all Americans are treated equally under the law," he said in a statement.

      As Rakoff points out, this elicited open opposition from the National Association of Assistant US Attorneys, as well as a letter condemning the Act sent by 29 former top Justice Department officials to Senate leaders. In July, Republican Senator Chuck Grassley of Iowa took the Senate floor to express his opposition.

      The plea bargaining system isn't going anywhere. Neither are false guilty pleas. But Rakoff believes we can cut down on the rate at which innocent people plead guilty under duress by making the plea bargaining process less opaque. At the moment, federal judges are forbidden from taking part, out of fear that their objectivity could be compromised if no deal is reached and the case goes to trial. However, if special magistrates were assigned as neutral third parties after indictment, they could meet with attorneys on both sides and make a recommendation to the judge. This type of set-up would preclude prosecutors from coercing guilty pleas via threats of decades-long sentences.

      In 1961, the right to an attorney was established when the Supreme Court ruled that a trial could not reasonably be fair if one side didn't have a lawyer. Nowadays, even the indigent have legal representation, though the system is so woefully underfunded, the legal assistance provided is often inadequate. As Eric Holder said in a 2012 speech to the American Bar Association, "Too many children and adults enter the criminal justice system with nowhere to turn for guidance and little understanding of their rights, the charges against them, or the potential sentences — and collateral consequences — that they face. Some are even encouraged to waive their right to counsel altogether."

      The Central Park Five's confessions were recorded, but not end-to-end, and Santana says the footage was heavily edited. Since DNA evidence is a factor in only 10 percent of criminal cases, procedural safeguards must substitute for science. However, in approximately 30 percent of wrongful convictions overturned with DNA evidence, the defendants had made false confessions or pled guilty. Therefore, Rebecca Brown of the Innocence Project says compulsory video recording of interrogations — raw, unaltered video from the reading of Miranda rights to the very last word — is crucial. In July, the Justice Department established "a presumption" that interrogations and confessions at the federal level would be recorded. At least 16 states and Washington, DC require certain interrogations to be recorded.

      "Many police agencies already voluntarily record interrogations, which is laudable, but we need to make it uniform practice," Brown says. "It helps prosecutors nail convictions, it's protection for the cop against false allegations, and whoever's doing the interrogation can go back later and look for subtle behaviors and body language they might have missed. What we have learned across the country from agencies that have started doing this is that they would never go back to the old way of doing things. One prosecutor said it was the best reform that was ever crammed down his throat."

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      Santana, now 39 years old, got married in September. He works in the Pension & Benefits department of a local union and recently signed on to executive produce an independent documentary about Kirk Bloodsworth, the first death row inmate in the United States to be exonerated with DNA evidence. The financial compensation he received from the New York certainly helps with endeavors like filmmaking, but Santana would still like for those who wrongfully sent him to prison answer for what they did. However, prosecutorial immunity means they cannot be sued for misconduct.

      "We need to take away immunity for prosecutors," Santana says. "They sit there and fight you tooth-and-nail, and even after you've been exonerated, they still say, 'Nope, this guy's guilty.' The DA's office never even entertained an alternative theory in our case. Let's hold them responsible. Then we'll see if they don't start looking at these cases a little more closely, especially when somebody has a claim of innocence."

      Follow Justin Rohrlich on Twitter: @justinrohrlich

      Topics: new york city, new york, americas, criminal justice, american justice summit, crime & drugs, united states, central park five, prison, jail

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