Thousands of People Might Be in Prison for Crimes That Never Even Happened

Once an event is mislabeled as a crime, forward momentum takes over — especially when there’s already a suspect

Photo: Choochart Choochaikupt/EyeEm/Getty Images

In 2012, Rodricus Crawford was wrongly convicted and sentenced to death in Louisiana for the murder of his one-year-old son, Roderius. Years later, it was revealed that Roderius had not been killed but rather had died from pneumonia and sepsis in his lungs.

How, then, did Crawford wind up on death row for a murder that never happened?

Crawford was convicted because of a number of interrelated factors. He was Black and poor in a city rife with racial division. Responders arrived with biased expectations about what had likely occurred in Crawford’s home and ignored evidence suggesting that the infant’s death was caused by illness. The police investigated with tunnel vision, anticipating from the outset that Crawford had engaged in wrongdoing. The medical examiner prematurely committed to homicide as a cause of death and disregarded and minimized clear medical evidence that pointed to a quite different conclusion. The prosecutor was eager to secure yet another capital conviction, and the judge went along for the ride.

It would be easy to dismiss Crawford’s experience as bad luck or as a strange anomaly in the criminal justice universe. But that would be a mistake. As crazy as it sounds, potentially thousands of innocent people have been wrongly convicted of crimes that simply did not occur. In fact, nearly one-third of all known exonerations of innocent people involve no-crime wrongful convictions. And those are only the cases we know about. The actual number of no-crime wrongful convictions that have occurred throughout history is unknown and perhaps unknowable.

Wrongful convictions have captured the attention of the public and media alike, as shown by the recent breakout success of season one of Serial on National Public Radio, television shows such as Making of a Murderer and False Confessions, and scores of books and Hollywood movies. Increased public awareness of wrongful convictions is a good thing, because it illuminates what defense practitioners and scholars have long known: The system is more prone to error than anyone ever imagined.

Most cases brought to the public’s attention involve “actual-crime wrongful convictions,” where an innocent person is convicted of a crime committed by someone else. A woman is raped, a man is murdered, or a building is intentionally burned to the ground. In these actual-crime wrongful conviction scenarios, a crime is committed, but the wrong person is identified as a suspect. The accused is dragged through the criminal justice system and is prosecuted, convicted, and punished for actions committed by someone else. Years later, sometimes decades later, the wrongful conviction is uncovered and the innocent person is cleared of wrongdoing. In the best-case scenario, the real offender is identified and the crime is finally and correctly solved.

No-crime wrongful convictions are different from actual-crime convictions in that no crime ever happened. A natural or accidental event might be mislabeled a crime, such as when an illness-related death is wrongly attributed to murder or an accidental fire is mislabeled as arson. A supposed victim might invent a false accusation. Corrupt police might plant evidence on a suspect and then lie about a crime’s occurrence.

Once an event is mislabeled a crime, forward momentum, often fueled by circular reasoning, takes over. If a crime was committed, then someone must have committed the crime. The police therefore have to find the perpetrator of that crime. Once the police identify the perpetrator of the crime, the existence of the crime is solidified. The prosecutor, in cooperation with the police, push forward to build a case against the alleged perpetrator. The initial, erroneous designation of a crime sets in motion a process that almost inexorably leads to a wrongful conviction.

The total number of wrongful convictions, both actual and no-crime, is unknown. But we can estimate. The best information about known exonerations comes from the National Registry of Exonerations (NRE), which keeps track of known exonerations since 1989. As of June 30, 2019, the NRE had recorded 2,468 exonerations. Of these, nearly one-third of all known exonerations (910) involved no-crime wrongful convictions. This means that in nearly one-third of all known exonerations, a person was convicted of a crime that never happened.

The old saying “Where there’s smoke, there’s fire” is wrong. Sometimes, there’s just smoke.

But even on its face, the NRE data undercounts all wrongful convictions generally, and no-crime wrongful convictions specifically. That’s because the compilations are only as good as the exoneration cases the registry knows about and because of NRE data classification decisions.

Exoneration data is also limited in the context of no-crime misdemeanor cases. Misdemeanor cases are the bread and butter of the criminal justice system. The court system processes roughly 10 million misdemeanor cases each year. Courts, prosecutors, and public defenders are drowning in cases involving people facing low-level criminal charges. Thousands of innocent people are convicted of misdemeanors, often after they enter a plea of guilty, based on crimes that never actually happened. We know very little about these cases, except that few innocent people are ever exonerated from these misdemeanor convictions.

What is repelling and astonishing about no-crime cases is that unbelievable quantities of time, energy, and human capital, not to mention taxpayer dollars, are wasted investigating, prosecuting, convicting, incarcerating, and, in some cases, supervising people (whether on probation, parole, or a sex offender registry) for events that were never criminal and should never have been pursued by the criminal justice system. In no-crime conviction cases, the state needlessly expends taxpayer resources pursuing cases against its own citizens for fictional crimes. Think about that. The state seizes innocent people and builds cases against them using inaccurate, unreliable, and, at worst, completely manufactured evidence to gain convictions for crimes that did not happen. In a no-crime conviction case, every single strand of evidence introduced by the state to “prove” the defendant committed the crime is patently invalid because, in reality, no crime ever occurred. Kafka could not have invented a more bizarre and terrifying scenario.

It’s the stuff of nightmares. But it is all too real. The old saying “Where there’s smoke, there’s fire” is wrong. Sometimes, there’s just smoke.

Excerpted from Smoke but No Fire: Convicting the Innocent of Crimes That Never Happened, copyright 2020 by Jessica S. Henry, reprinted with permission of the University of California Press.

Criminal Justice Reform/Prof/Fmr public defender. Blog@ www.jessicahenryjustice.com. au:Smoke but No Fire: Convicting the Innocent of Crimes that Never Happened

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