(Brendan Shiller's post originally ran on the Daily Law Bulletin on 2/24/2014).
With each passing year, a higher percentage of actual innocence exonerations are not based on DNA evidence, and more and more exonerations are coming about as the result of pro-active actions by law enforcement agencies, according to a report released by the National Registry of Exonerations on Feb. 4.
The National Registry of Exonerations is a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law.
The report analyzed 87 exonerations that occurred in 2013 and continued to analyze the trends on exoneration cases going back to 1989. Illinois was again among the top three in exonerations, ranking behind only Texas in 2013. Last year, nine people in Illinois were exonerated after having previously been convicted and serving time for serious felonies that they did not commit.
There was at least one exoneration in 25 different states and one federal exoneration. According to the report, there have been 1,304 verified exonerations from 1989 through February 2014. But the most interesting aspect of the report for both criminal and civil rights practitioners are the trends in exoneration cases. According to the report, “The number of DNA exonerations continued to decline slowly, as it has for most of the past decade, while the number of non-DNA exonerations rose sharply.”
Last year, only 18 of the exonerations were the result of DNA testing. At the same time, the number of non-DNA exonerations in 2013 was 69 — more than a 100 percent increase over a 10-year period. The slow and steady decline in DNA exonerations is logical. As technology has become more widely available and used by law enforcement in the investigative and prosecutorial phases, there have been fewer opportunities for wrongful convictions where DNA existed.
Probably related to the decreasing number of DNA-related exonerations is the finding that fewer of the exonerations were for rape and murder cases. According to the report, 25 years ago, 82 percent of all exonerations were for cases involving rape and/or murder. Last year, that number was down to 67 percent. Defense lawyers, civil rights lawyers and even law enforcement agencies are starting to take second looks at less serious cases.
What may surprise a few practitioners is what types of exonerations are increasing. A total of 17 percent of all exonerations (both DNA and non-DNA) in 2013 resulted from cases where the person had originally pleaded guilty. That was more than double the percentage in 2008.
And, in 2013, nearly 40 percent of all known exonerations (33 out of 87) “were obtained at the initiative or with the cooperation of law enforcement,” according to the report. The report says “police and prosecutors appear to be taking increasingly active roles in reinvestigating possible false convictions, and to be more responsive to claims of innocence from convicted defendants.”
The report makes several conclusions based on these facts. The overall theme, however, is that the culture and process of reviewing actual innocence claims is broadening in two ways. First, it is now an accepted component of law enforcement. Where once there was institutional defensiveness to claims of actual innocence, many law enforcement agencies and prosecutors are embracing as part of their mandate to do justice that they need to ensure people aren’t wrongfully convicted.
And second, these investigations are broadening into different types of crimes.The report put it most succinctly: “The pattern of exonerations in 2013 suggests that we are increasingly willing to consider and act on the types of innocence claims that are often ignored: Those without biological evidence or with no actual perpetrator; cases with comparatively light sentences; judgments based on guilty pleas by defendants … the recent increase in the number of exonerations initiated by law enforcement directly shows that police and prosecutors have become more attentive and concerned about the danger of false conviction.”
The people helping to produce the report included Samuel Gross, a law professor at University of Michigan; Rob Warden, the executive director of Northwestern’s Center on Wrongful Convictions; Pulitzer Prize-winning journalist Maurice Possley; and attorney Shannon M. Leitner.