From the December 2008 Idaho Observer:

What is America’s role in wrongful convictions?

By Darrell van Mastrigt

Wrongful convictions have become common in America. Wrongful convictions, however, are not unique to modern America. Throughout history there has been wrongdoing and people found guilty of crimes ranging from stealing a chicken or horse to murdering a neighbor have forever been treated unequally under the law. Consider the following:

• An accused community member is treated differently than a stranger passing through it.

• A town leader receives preferential treatment not afforded the town drunk.

Those who appear different, odd or poor are easily seen as evildoers or outcasts.

• Criminal charges, both true and false, made against "outcasts" are seldom proven wrong.

• The accused, by the very act of accusation, can be transformed from an esteemed member of a community to a pariah or outcast.

Under the circumstances mentioned above, it is the impression of "otherness"—not necessarily the evidence or lack thereof—that leads to wrongful convictions today in America as it has for centuries all over the world.

However, many other factors are present when we look at those most likely to be accused and convicted of a crime. Informal polling of current prison populations at local, state, federal and national levels reveals the following:

• Eighty percent of convicts were living at or below national poverty levels at conviction.

• Nearly 50 percent of convicts have documented mental disorders, which increases to nearly 90 percent when drug and alcohol addictions are included.

• 96 percent are unable to garner help, support or finances from five or more people in their former communities (this includes family, friends and loved ones).

• When asked in a survey how connected they felt to their community, 47 percent said "not very" and 22 percent said "not at all."

• Eighty-six percent described themselves as feeling "outcast."

• Added to these factors is the reality that 90 percent of convicted prisoners are guilty of some or all of the charges against them [even though many were convicted of victimless, consensual or nonviolent "crimes"].

Under these conditions, the media finds it easy and profitable to demonize the accused. Public officials are then able to score political points and generate tax revenues for being "tough on crime." Communities respond by assuming the accused are guilty as charged, are content that they are sent to prison and effectively shun them as ex-cons after release.

This unjust social and political climate could easily be reversed in America by simply not sensationalizing crime. In some European Union countries, for example, it is illegal to publicize criminal cases until after a verdict has been reached.

Infamous murder, terrorist and child molestation cases are highly sensationalized in America for weeks, even months before juries return verdicts, inevitably biasing the public and juries based on pundit opinions rather than facts or evidence presented in court. In the absence of such pre-verdict media coverage, there is no sensational speculation and demonizing of suspects; fear and outrage is minimized and courts of competent jurisdiction are more able to faithfully mete out justice in the public interest.

Have you ever wondered what "service" the media provides polite society when it sensationalizes crime?

In most cases, police are able to arrest suspects and keep potentially violent criminals in custody until a verdict is reached after a jury trial. Does the accused, whether non-violent and released on his own recognizance or potentially violent and in jail, pose any further threat to a community? Will media discussion and speculation about the crime or suspect’s background in any way protect the viewers?

The answers to both questions is, "No."

In cases where perpetrators are still at large, a legitimate argument could be made that publicity may help catch them or prevent the commission of further crimes. But, once the suspect is taken into custody, further media coverage compromises due process and the rights of the accused to receive a fair and speedy trial per due process of law are violated.

By allowing the media to sensationalize crime, public safety is compromised because it encourages copycat criminals. Sensationalizing crime also sends a message that committing crimes is a great way to become notorious and provides some people the incentive to try "besting" a criminal act that earned some other guy months of media attention.

Besides compromising public safety, it is unethical for the media to sensationalize (glorify) the despicable acts of real criminals. Media insult adds further injury to the wrongfully-accused by effectively denying them the right to prove their innocence in a courtroom setting that is not biased by political and social pressures created by sensational printed and broadcast coverage.

When American politicians and media use criminal cases for sensationalized news bites and campaign slogans, it is then in their interest to make sure their expedient and often wrong opinions are not challenged or turned against them later. As it stands now, the wrongfully convicted can spend decades attempting to prove their innocence with ample evidence only to serve their entire sentences—or the rest of their lives—in prison so that media pundits, courts and politicians can avoid the embarrassment of admitting to having mistakenly sent innocent people to prison.

Right now in America there are thousands of legitimate cases of wrongful imprisonment in the nation’s courts but the system prefers to sidestep truth, fairness and justice by invoking procedures designed to uphold rather than reverse wrongful convictions.

Countries that prohibit sensationalizing crime and criminals understand that pre-conviction media coverage compromises justice by prejudicing courts and public opinion. When wrongful convictions occur in a nation where crime is not sensationalized, they can be treated as honest mistakes to be corrected without fear of political or media backlash.

If a country bans media coverage until after conviction, the story of guilt or innocence becomes a report on a factual event. There are no notorious defendants paraded in front of cameras, no irrational fear of continuing crime waves and the use of convictions for political advantage is minimized. It is then a legitimate news story that can be reported as case closed without resorting to fear-generating innuendoes and speculation. The story may last a day or two before becoming history.

Canada began reforming wrongful conviction review statutes in 2000. On June 8 of that year, then Justice Minister Anne McLellan proposed changes that resulted in amendments to Section 690 of Canada’s Criminal Code. The amendments enabled the minister of justice to use his discretion in responding to petitions for review of wrongful conviction claims. Many Canadian convicts who were ultimately exonerated under the new rules had applications for relief languishing for years and decades before the federal review board. Since 2000, dozens of wrongful convictions have been overturned in Canada and the process is reportedly ongoing.

Meanwhile, in America, it is estimated that at least one percent of prosecutions result in wrongful convictions. That means about 20,000 provably innocent people are currently serving prison sentences. In recent years 220 convictions have been reversed based on DNA evidence; hundreds more have been reversed on other grounds.

We know from these cases that errors do, in fact, occur and, therefore, the need for reform exists. Reform should include taking steps to remove pretrial publicity and resultant political pressure from the equation so courts can rule objectively in accordance with the law and evidence. Reform should also involve amending applicable statutes to promote meaningful judicial review and, when appropriate, prompt reversal of convictions that are proved wrongful.

It is now also time for America to assume the lead role in fighting for justice for all, especially on behalf of the wrongfully convicted. For this, I continue to pray.