POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Pace Law School, Scholar, and Renowned Expert on Prisoners’ Rights.
Following an exhaustive five year investigation the Correctional Association of New York has just released a ground- breaking study of the treatment of women in New York state prisons. The report entitled Reproductive Injustice: The State of Reproductive Health Care for Women in New York State Prisons tells a distressing tale about how female prisoners are denied basic rights essential for women including substandard gynecological care and insufficient supplies of feminine hygiene products and toilet paper. Chillingly, the report describes the horrible practice of shackling pregnant women during labor, delivery, and postpartum recovery, in apparent violation of the state’s 2009 law barring such practices, as well as throwing some of these women into solitary confinement, which could have serious consequences for the mental health of the mothers and for the health of their unborn children.
The Correctional Association of New York is a 170 year old non-governmental organization with the legal authority to visit New York’s prisons and report to the public and to the Legislature its findings. It is one of only two such organizations in the country. The author of this important study, Tamar Kraft-Stolar, director of the Correctional Association’s Women in Prison Project, will visit Pace Law School on April 1st to speak at a PILSO Sponsored forum open to the public and also to speak at the law school’s Prisoners’ Rights Course. More details about this event will be forthcoming.
The study identifies forensic error, prosecutorial misconduct, false confessions, and eyewitness misidentification among the common factors in wrongful convictions. The study suggests there is a notable difference between “causes” of erroneous convictions compared to “correlates” of wrongful convictions.
Missing so far in the literature is a study that asks how the criminal justice system identifies innocent defendants in order to prevent erroneous convictions. What we want to know – and thus what dictated our research strategy – is what factors are uniquely present in cases that lead the system to rightfully acquit or dismiss charges against the innocent defendant (so-called “near misses”), which are not present in cases that lead the system to erroneously convict the innocent.
The study identifies factors aiding to erroneous conviction of innocent defendants including:
Age and criminal history of the defendant
Punitiveness of the state
Weak defense and prosecution case
Family defense witness
Laying by a non-eyewitness
Criminal justice official error
The study concludes that
increased attention to the failing dynamics of the criminal justice system, rather than simply isolated errors or causes, may lead to better prevention of erroneous convictions. …[The] results suggest that there should be greater emphasis at all levels and on all sides of the criminal justice system, including police, prosecutors, defense attorneys and judges, to analyze and learn from past mistakes before they result in serious miscarriages of justice.
When I read “common factors” in wrongful convictions, I had to pause. Is the criminal justice system so flawed that there is a sufficient amount of wrongful convictions to conduct a study? Apparently so; an alarming number of wrongful convictions have emerged in the past decade(s) and the number keeps growing. The Innocence Project has been one of the leaders in the efforts to exonerate wrongfully convicted, currently showing 303 successfully exonerated individuals. But is exoneration after the fact enough? The study offers a different approach to erroneous convictions – an approach consisting of variety of steps to be taken early on in an investigation that would prevent the commission of erroneous convictions rather than dealing with the effects of wrongful conviction when damage to the wrongly accused and everyone around her has already been done.