10 Things You Should Know about American Criminal Justice

 

This article is part of the 10 Things You Should Know series.

1. Only a very small percentage of serious crime in the US is solved.

“Mass incarceration” is a phrase often invoked in contemporary American discussions of criminal justice. Perhaps you have heard reference to the fact that the United States has only about 4.25 percent of the world’s population but houses about 19 percent of the world’s prisoners. These statistics, however, tell us very little about the health of the American system of criminal justice. 

The United States has a rate of violent crime markedly higher than that of most Western European nations, yet only a fraction of those crimes is ever solved and the perpetrators held accountable. One recent study estimated that about 10 percent of serious crime—meaning murder, rape, aggravated assault, theft, burglary, robbery—result in arrests.¹ Singling out murders, only about half of them are ever solved.² For all the incarceration that is occurring in the United States, there is still an enormous amount of serious crime that goes unaddressed, leaving victims (past and future) unprotected and perpetrators uncorrected.

2. The American founding was motivated, in part, by concerns about the justice system.

Concerns about and criticism of the criminal justice system is not un-American; rather, it is quintessentially American. The American Revolution often brings to mind tea taxes and the Boston harbor protest of such. But skimming the Declaration of Independence, one realizes that the colonists were also quite concerned about abuses of the criminal justice system by King George III. In the very first Congress, James Madison proposed a series of constitutional amendments—now known as the US Bill of Rights—that were overwhelmingly focused on how criminal prosecutions must be conducted. The American founders understood that the power to criminally punish was an enormous one and the emotional outcry to solve a crime could lead the authorities to run roughshod over the rights of the accused.

3. You can be jailed for years before a trial on criminal charges.

The Sixth Amendment to the US Constitution promises that a criminal defendant facing charges will receive a speedy trial, while the Eighth Amendment prohibits the government from imposing excessive bail on those charged with crimes. These two provisions were intended to work together to ensure that the government could not punish a defendant by extended incarceration before conviction. Bail could only be imposed in an amount to ensure that the defendant would return to court for trial, and even those defendants detained prior to trial would be quickly brought to trial. At least, that’s the theory. But courts, including the US Supreme Court, have ruled that years-long delays do not violate the speedy trial right, and a defendant can be detained before trial merely because he is deemed dangerous. The result is that criminal defendants are regularly jailed for years before they ever receive their day in court. In 2019, for example, a man in Washington state was acquitted at trial after spending more than eight years in jail, unable to make bail.³

4. Approximately 95 percent of criminal cases are resolved through guilty pleas.

Television shows and movies cause many people to think criminal cases are mostly resolved through trials. The truth is that about 95 percent of criminal convictions are the result of guilty pleas rather than trials. Given that the US Constitution guarantees criminal defendants the right to a jury trial, why would nearly all defendants waive that right and instead plead guilty? The answer is that the US Supreme Court has not only allowed for pretrial detention and lengthy pre-trial delays (see #3 above), which create pressure to plead guilty, but has also ruled it constitutional to impose substantially higher sentences for those defendants convicted after trial rather than by guilty plea. The result is that prosecutors either threaten unjustly severe sentences after trial or offer unjustly lenient sentences if the defendant waives the trial. Either way, the guilty pleas are secured through unjust sentences.

5. The right to counsel for the poor is going unfulfilled.

In 1963, the US Supreme Court ruled in Gideon v. Wainwright that since the government is represented by a lawyer (prosecutor) in a justice system governed by complicated procedural and evidentiary rules, basic due process requires that the defendant likewise be represented by a lawyer even if he cannot afford one.⁴ But in the sixty years since that decision, states have done an abysmal job of providing even minimally competent representation for indigent defendants. Studies by the American Bar Association in an array of states—including Rhode Island, New Mexico, and Oregon—concluded that states are funding approximately one-third the number of defense attorneys needed for the criminal cases brought against men and women too poor to hire their own attorneys.⁵ Louisiana had about one-fifth the needed number of attorneys.⁶ As a federal judge in Louisiana observed about the underfunding of defense counsel in that state, “It is clear that the Louisiana legislature is failing miserably at upholding its obligation under Gideon.”⁷

6. Since 1989, more than 3,430 people convicted of crimes have later been exonerated.

There was a time in the United States when the idea of an innocent man or woman wrongly convicted was viewed as implausible.⁸ But the advent of forensic DNA technology in August 1989 has shown that convictions of the innocent are anything but rare. As of the end of 2023, 3,433 people were exonerated after having been wrongly spending a collective 31,078 years in prison for crimes they did not commit.⁹ To be clear, these aren’t people who got off because of legal technicalities that were not followed in their cases. These are people who didn’t commit the crimes of which they were convicted. In December 2023, Glynn Simmons was exonerated of a 1975 murder for which he was convicted and spent forty-eight years in Oklahoma prison. He was released from prison in 2023 at the age of seventy-one, having been imprisoned since he was twenty-three years old.¹⁰ Simmons’s case was the longest known wrongful imprisonment in United States history, but he is not the only innocent to have spent more than four decades in prison for someone else’s crime.

7. About one quarter of exonerations are of people who pled guilty to crimes they didn’t commit.

People plead guilty to crimes they didn’t commit. Of the 3,433 exonerations since 1989, 830 (or 24%) were of people who had pled guilty.¹¹ In fact, of the first 250 people exonerated through DNA, sixteen were of people who pled guilty to crimes that we now know as a scientific fact that they did not commit.¹² The pressure to plead guilty is enormous when people are denied bail and jailed before they are convicted, when their trials could be years away because the speedy trial right is not enforced, when there are not enough defense attorneys to represent the poor, and when defendants can receive far more severe sentences if they take their cases to trial. The result is that innocent people, not only guilty people, plead guilty.

8. Prosecutors have absolute immunity from federal civil rights lawsuits.

A common refrain when someone is exonerated after years in prison for a crime he didn’t commit is something like, “I hope he sues them.” But the legal reality is that lawsuits against prosecutors for wrongful convictions are nearly impossible. States typically provide prosecutors with immunity from lawsuits under state law.¹³ And the US Supreme Court ruled that state prosecutors have absolute immunity from federal civil rights lawsuits to recover money damages for even intentional misconduct.¹⁴

9. At least two percent of people sentenced to death in the US are innocent.

As of the end of 2023, just over 8,800 people have been sentenced to death in the United States since the death penalty was reinstated in 1973.¹⁵ In that same time period, 195—or 2 percent—of those sentenced to death were later exonerated.¹⁶ These aren’t people who later had their convictions reversed based on legal technicalities; rather, these are people who it was later discovered had not committed the crimes for which they were condemned to death. Exonerations take time and not everyone sentenced to death is ultimately executed, whether because their convictions are reversed based on legal errors, they receive clemency, or they die while pursuing appeals. Statistical modeling that takes these factors into account estimates that the actual rate of death sentences for the innocent is at least 4 percent.¹⁷

10. The death penalty is largely extinct in the United States.

Since 1973, the number of death sentences imposed in a single year peaked at 316 in 1996,¹⁸ while the highest number of executions in a single year was ninety-eight in 1999.¹⁹ But over the last decade, the numbers of death sentences and executions have fallen dramatically. In 2023, only twenty-one people were sentenced to death and only twenty-four executions were carried out.²⁰ Only twenty-one states still allow for the death penalty as a matter of law, and in seven of those states there is a moratorium on the death penalty.²¹ In other words, only fifteen states still carry out the death penalty as of 2023, while only ten states have carried out an execution in the last five years.²²

Notes:

1. Shima Baradaran Baughman, “How Effective Are Police? The Problem of Clearance Rates and Criminal Accountability,” Alabama Law Review 72, no. 1 (2020): 86, https://dc.law.utah.edu/scholarship/213/.
2. “Clearance Rates,” Murder Accountability Project, accessed October 1, 2022. https://www.murderdata.org.
3. Sara Jean Green, “After Nearly 11 Years and Two Trials, Killing of Redmond Woman Who Had Been ‘Living Her Dream’ Remains Unsolved,” Seattle Times, June 14, 2019, last modified June 15, 2019, https://www.seattletimes.com/.
4. Gideon v. Wainwright, 372 U.S. 335 (1963).
5. The Rhode Island Project: A Study of the Rhode Island Public Defender System and Attorney Workload Standards (American Bar Association Standing Committee on Legal Aid and Indigent Defendants, November 2017), 26, https:www.americanbar.org/; The New Mexico Project: A Study of the New Mexico Public Defender System and Attorney Workload Standards (American Bar Association Standing Committee on Legal Aid and Indigent Defendants, January 2022), 5, https:www.americanbar.org/; The Oregon Project: A Study of the Oregon Public Defender System and Attorney Workload Standards (American Bar Association Standing Committee on Legal Aid and Indigent Defendants, January 2022), 26, https:www.americanbar.org/.
6. The Louisiana Project, A Study of the Louisiana Public Defender System and Attorney Workload Standards (American Bar Association Standing Committee on Legal Aid and Indigen Defendants, February 2017), 2, https://www.americanbar.org/.
7. Yarls v. Bunton, 231 F. Supp. 3d 128, 137 (M.D. La. 2017).
8. United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923) (“Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream.”).
9. “Exonerations by State,” National Registry of Exonerations, accessed December 31, 2023, https://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx.
10. Ken Miller, “Oklahoma judge rules a man who wrongfully spent nearly 50 years in prison for murder is innocent,” Associated Press, December 21, 2023, https://apnews.com/article/inmate-murder-oklahoma-exonerated-50-years-1d06d2a65792f55ab1f1e2f4acace8ee.
11. “Exonerations by State,” National Registry of Exonerations, accessed December 31, 2023, https://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx.
12. Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong(Cambridge, MA: Harvard University Press, 2011), 7, 26-27, 150-53.
13. See, e.g., Griffith v. Slinkard, 44 N.E. 1001, 1002 (Ind. 1896).
14. Imbler v. Pachtman, 424 U.S. 409 (1976).
15. “Death Sentences in the United States Since 1973,” Death Penalty Information Center, accessed December 31, 2023, https://deathpenaltyinfo.org/facts-and-research/sentencing-data/death-sentences-in-the-united-states-from-1977-by-state-and-by-year.
16. “Innocence,” Death Penalty Information Center, accessed December 31, 2023, https://deathpenaltyinfo.org/policy-issues/innocence.
17. Samuel R. Gross, Barbara O’Brien, Chen Hu, and Edward H. Kennedy, “Rate of False Convictions of Criminal Defendants Who Are Sentenced to Death,” Proceedings of the National Academy of Sciences 111, no. 20 (May 20, 2014): 7234-35, https://doi.org/10.1073/pnas.1306417111.
18. “Death Sentences in the United States Since 1973,” Death Penalty Information Center, accessed December 31, 2023, https://deathpenaltyinfo.org/facts-and-research/sentencing-data/death-sentences-in-the-united-states-from-1977-by-state-and-by-year;
19. “Executions by State and Region Since 1976,” Death Penalty Information Center, accessed December 31, 2023, https://deathpenaltyinfo.org/executions/executions-overview/number-of-executions-by-state-and-region-since-1976
20. “The Death Penalty in 2023: Year-End Report,” Death Penalty Information Center, accessed December 31, 2023, https://deathpenaltyinfo.org/executions/2023.
21. “State by State,” Death Penalty Information Center, accessed December 31, 2023, https://deathpenaltyinfo.org/states-landing.
22. “States With No Recent Executions,” Death Penalty Information Center, accessed December 31, 2023, https://deathpenaltyinfo.org/executions/executions-overview/states-with-no-recent-executions.

Matt Martens is the author of Reforming Criminal Justice: A Christian Proposal.

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Matthew T. Martens (JD, University of North Carolina School of Law; MABS, Dallas Theological Seminary) is a trial lawyer and partner at an international law firm in Washington, DC. He has spent the bulk of his more than twenty-five-year legal career practicing criminal law both as a federal prosecutor and as a defense attorney. He served as a law clerk to Chief Justice William Rehnquist at the US Supreme Court and also as a political appointee in the criminal division of the US Justice Department under Attorney General Ashcroft. Matt and his wife are members at Capitol Hill Baptist Church in Washington, DC, and have two sons and a daughter.