Everyday Erinyes #109

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. Even though there are many more which I can’t include. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto, Megaera, and Tisiphone. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”

I’ve lately been focusing on single issues for this column rather than groups of individual incidents, and this week will not be an exception. I want to examine, and I want the furies to examine, why it is so adjectivally difficult, not just to establish the innocence of people wrongfully convicted by one or more of out sixty-plus criminal justice systems, but to get the system to let go of them.

Since it was established in 1992, the Innocence Project has succeeded in reversing the convictions of over 200 people, but the group says that a “staggering number of innocent people” remain behind bars today.

Perhaps even more troubling is that even when clear, indisputable evidence emerges showing that someone has been imprisoned for a crime they didn’t commit, prosecutors, police, and judges will often fight tooth and nail to keep them incarcerated.

Mark Godsey was a prosecutor in New York in the nineties when the Innocence Project was founded. He loved being a prosecutor, loved putting away the bad guys and benefiting society. He was considered a “prosecutor’s prosecutor.” He decided to become a law professor. On his very first professorial gig, he was at a school which had an Innocence Project.

When I arrived, they said, “The professor who runs it is on sabbatical this year. Since you’ve got a criminal-law background, you’re going to have to supervise it.’ I really couldn’t say no—I was untenured, I was the new guy on the block. But I remember thinking, “You’ve got to be kidding me. There are no innocent people in prison.” That was my view.

He was convinced the Innocence Project was a bunch of bleeding-heart hooey right up until the first DNA results came in on a case being worked that year. At that, Godsey himself is extraordinary. On the continuum he is on the far end as a science accepter. At the other end is Donald J. Trump, who is still insisting that the Central Park Five should be executed, long after their innocence has been proven beyond a doubt. Most people in the justice system appear to be clustered on the Donald end. Godsey again:

The first thing that shocked me when I started doing post-conviction innocence work is when we had several cases with DNA evidence, and it was absolutely clear the person was innocent. I saw these prosecutors just going into denial and spinning all these ridiculous theories about how the person might still be guilty. They almost make you laugh. My first reaction was, “Are these people kidding? Are they serious?” I’m in court thinking, “Is this Candid Camera?”

That’s how ridiculous these theories could be. And I realized that the Innocence Movement is really pointing out some flaws at the basic core of the criminal-justice system, and those in the system are really in denial about it. I think I was too, as a prosecutor.

Godsey points out that prosecutors, and their teams, including law enforcement, and jurists, become conditioned to this mindset, and he should know – he was himself conditioned.

If you really could step out of that role, somebody might be able to just sort of shake you out of that bureaucratic mindset and say, “Step back from this a minute. Look at why you went to law school. Look what you’re actually doing to this person.”

Godsey notes that racism and other forms of discrimination are also problems, but in his book, Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions, he doesn’t spend much time discussing them for this reason:

Obviously, racism is a huge problem in the criminal-justice system, and it’s a huge part of wrongful convictions. But what I focus on is things like confirmation bias, malleable memory—things that don’t get as much attention. If I were to address racism, it would end up swallowing the entire book, because it’s such a pervasive problem. It’s also addressed elsewhere in other books, and I’m trying to highlight things that aren’t regularly discussed.

If you tell people up front it’s a book about racism, everybody thinks they’re not a racist, so they just sort of check out, and think, “Okay, this doesn’t apply to me.” But if you disarm them on that, then you can get them to learn about confirmation bias and tunnel vision and all these psychological flaws that we all have.

He does spend time and effort on the behavior of elected prosecutors and judges as opposed to the behavior of appointed prosecutors and judges.

I was a federal prosecutor in New York City. Federal prosecutors and judges are appointed by the president. They don’t have to run for reelection. They don’t have to get the endorsement of local law enforcement. When I came back to Ohio, and started doing innocence work, I was absolutely shocked at how the [state] judges [who are elected] just seemed to be politically aligned with the prosecution. The judges would simply line up with the prosecution and ignore plain evidence of innocence. I detail in the book how the imperatives of electoral politics cause prosecutors to always want to look tough on crime, and they end up being conditioned to look tough on crime all the time instead of being reasonable in some cases.

It’s the same with judges. The person that judges want to get to endorse them and appear on commercials with them come re-election time is the prosecutor. This is common in the 38 states where we have elections.

In addition to the connections that he mentions (and which a lot of us are aware of), however, I think that when elections are in play there’s another big cultural factor that he misses – at least in this interview.

I was brought up to believe that it takes a truly honest person, and a person with a big soul, to be able to admit mistakes. And my personal experience has reinforced this – it’s extremely difficult, I might even say damnably difficult, for me to admit publicly to a large mistake. It takes every ounce of moral fiber that I have. But as a result, I have tremendous respect for the person who admits and rectifies mistakes over the person who is “never wrong.” As far as I can tell, most people don’t. And people who run for office know this. Even those who might personally be willing to admit a mistake feel that they cannot be perceived to admit a mistake, or they will be at a political disadvantage. And they are probably right.

And this is why I am calling on the expertise of the Furies here. Yes, to some extent we can fix this if all states go to appointed judges and prosecutors rather than elected judges and prosecutors. But it would help tremendously if we could also change the cultural stereotype. Can you ladies help?

Anyone who clicks through can read the edited transcript (which is well worth reading) or even listen to the 25-minute interview.

The Furies and I will be back.

Cross posted to Care2 HERE.