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60 Ariz. L. Rev. 815 (2018)
Overstating America's Wrongful Conviction Rate: Reassessing the Conventional Wisdom about the Prevalence of Wrongful Convictions

handle is hein.journals/arz60 and id is 843 raw text is: OVERSTATING AMERICA'S WRONGFUL CONVICTION RATE? REASSESSING THE CONVENTIONAL WISDOM ABOUT THE PREVALENCE OF WRONGFUL CONVICTIONS Paul G. Cassell* A growing body of academic literature discusses the problem of wrongful conviction5 i.e., convictions of factually innocent defendants for crimes they did not commit. But how often do such miscarriages ofjustice actually occur? Justice Scalia cited afigure of 0. 027% as a possible error rate. But the conventional view in the literature is that, for violent crimes, the error rate is much higher at least 1%, andperhaps as high as 4% or even more. This Article disputes that conventional wisdom. Based on a careful review of the available empirical literature, it is possible to assemble the component parts of a wrongful conviction rate calculation by looking at error rates at trial, the ratio of wrongful convictions obtained through trials versus plea bargains, and the percentage ofcases resolved through pleas. Combining empirically based estimates for each of these three factors, a reasonable (and possibly overstated) calculation of the wrongful conviction rate appears, tentatively, to be somewhere in the range of 0.016% 0.062% a range that comfortably embraces Justice Scalia's often- criticized figure. If this Article's tentative error-rate range is correct, it means that previous scholarship has significantly overstated the risk of wrongful conviction. Moreover, it is possible to compare the lifetime risk of being wrongfully convicted to the risk of being a victim of a violent crime. The relative risk ratio appears to be about 30, 000 to 1. This decidedly skewed ratio suggests that reform measures for protecting the * Ronald N. Boyce, Presidential Professor of Criminal Law and University Distinguished Professor of Law, S.J. Quinney College of Law at the University of Utah. Thanks to Ron Allen, Shima Baradaran Baughman, Tom Bmnker, Patricia Cassell, Amos Guiora, Larry Landan, Josh Marquis, Dan Medwed, Felicity Murphy, Leslie Risinger, Michael Risinger, George Thomas, Matt Tokson, Alec Walen, Marvin Zalman, and participants in colloquia at Seton Hall Law School and the S.J. Quinney College of Law. Maryann Dennis and Felicity Murphy provided excellent research assistance. All views expressed here are mine alone. This research was made possible in part through generous support from the Albert and Elaine Borchard Fund for Faculty Excellence.

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