What's behind record exonerations for wrongful convictions

A record number of people were exonerated in 2015, according to a new report, and experts say there’s a simple reason behind it: More prosecutors are actively looking for wrongful convictions. 

There were 149 exonerations last year, according to a new report from the National Registry of Exonerations, based at the University of Michigan Law School in Ann Arbor. Since 2011, the annual number of exonerations has more than doubled – the country now averages close to three exonerations a week – and this surge has been mirrored by an increase in prosecutor involvement.

"Most prosecutors want to do the right thing. Prosecutors don't want to keep innocent people in prison," says Daniel Medwed, a professor at Northeastern University School of Law. "It's not in the interest of prosecutors and society to have an innocent person in prison, because it also means a guilty person is free."

The report says there’s a growing recognition among prosecutors that "convicting the innocent is a serious public problem that requires proactive government attention." So far, prosecutor efforts to double-check cases remains sporadic, experts say, but it has the potential to maintain the surge in exonerations and even prompt front-end changes that could prevent wrongful convictions from happening in the first place.

As the number of exonerations has increased, so have the number of Conviction Integrity Units (CIUs), divisions inside district attorney offices dedicated to investigating wrongful convictions. The CIU system is far from perfect, experts say, but in a few short years it’s already had a visible impact on exoneration numbers around the country.

Six new CIUs opened last year, bringing the total to 24 nationwide – quadruple the number that existed in 2011 – and in 2015 CIUs produced a record 58 exonerations. Nearly three-quarters of the 151 CIU exonerations since 2003 occurred in 2014 and 2015.

Michael Ware was the first head of one of the first CIUs ever established, in Dallas, Texas, in 2007. When they first created the office it was seen as "politically risky," he says.

Several attorneys quit and a few more were fired, according to a Monitor feature on the unit, but the unit remains one of the most successful in the country with 25 exonerations to date. That is the second most in the country, according to the National Registry. Even though the DA who established it lost an election last year, the unit has survived.

"Somebody had to see us do it before it hit them that not only was this the right thing to do, but it also had a lot of political traction to it," says Mr. Ware, who now works as a private defense lawyer in Fort Worth. "Their electorate doesn’t like to see people getting wrongfully convicted." 

But challenges remain. While the Dallas CIU has helped inspire similar offices around the country, results have varied and criticism has abounded, particularly over concerns some units are just window dressing.

Nearly half of CIU exonerations in 2015 came from one office in Harris County, Texas, and 90 percent occurred in just four counties. Half of all CIUs have not exonerated anyone, and four others have only worked on one.

"Many of us are concerned about the whitewash fear," says Professor Medwed, who is also a board member of the New England Innocence Project.

"If a jurisdiction has a [CIU] it might create a perception of justice," he adds, "but you really have to look behind that and see which ones are doing proactive work and which ones aren't."

A number of other issues can limit a CIU's effectiveness, including a frosty relationship with the local criminal defense bar, inaccessibility, and changes in leadership. 

A strained relationship between the New Orleans district attorney's office and Innocence Project New Orleans saw that city's CIU disbanded last month after just one year and one exoneration.

The National Registry report also criticized a number of CIUs for not being accessible to people who may want to argue that they’ve been wrongfully convicted. Six of the 24 CIUs have no website or direct telephone number, including four that have existed for two years or more.

And with most CIUs only a few years old, some experts question whether they will have staying power, particularly when there’s a change in leadership. Early exonerations usually have been for cases prosecuted by prosecutors' predecessors.

"It's harder to look at your own work and find a mistake, because there's confirmation bias," says Mark Godsey, director of the Ohio Innocence Project.

"I've seen some examples of prosecutors fighting that really well," he adds, "but I think the results have been mixed."

He also points out that CIUs are still "a pretty rare thing." Only 15 percent of Americans live in jurisdictions with one.

"Where it exists it is important," Mr. Godsey says, "[but] I don't think a vast majority of prosecutor offices around country have these."

But the potential of CIUs – both in overturning wrongful convictions and preventing them from occurring in the first place – is immense, experts say. Prosecutors "are in the best position to correct their own mistakes," says Ware, with access to police investigators and decades of old files.

And the mistakes CIUs are unearthing have also led to changes in how those prosecutors approach cases from the start. In Harris County, for example, the number of drug-related exonerations has prompted the DA's office to not offer plea bargains in drug cases until a lab test has been done – unless the bargain includes no further incarceration.

And Ware says there's now "a little bit less recklessness" in how prosecutors work cases, "because there's a sense that wrongful convictions happen, they do get exposed, and bad things will happen if it happens on their watch."

"They're being held accountable by their electorate," he adds. "People may not understand much about the criminal justice system, but people understand the fundamental unfairness of being wrongfully convicted of a crime."