An American Epidemic: Crimes of Wrongful Liberty

Tens of thousands of individuals have been victimized by perpetrators who would have been locked up had the criminal justice system worked properly, the authors' research shows. The problem is not just the wrongful conviction, but also the wrongful liberty of the culprit.

Unlike what appears on Law and Order, wrongful convictions very rarely end up with a happy ending. Most cases remain unsolved, leaving those harmed by criminal justice failure with neither justice nor closure. Further, they often leave the truly guilty party, the perpetrator, on the street to commit more crime.

We call those “crimes of wrongful liberty” because the justice system, by putting the wrong person in custody, left the true criminal wrongfully free. During that time of wrongful liberty, these criminals often commit more crime. In fact, we estimate that they commit tens of thousands of crimes each year.

One well-known example of wrongful incarceration is that of Jennifer Thompson, the co-author of this article, and Ronald Cotton. As explained in the memoir, Picking Cotton, after a 1984 attack that almost left her dead, Jennifer participated as an eyewitness in a trial that eventually led to the conviction of Ronald Cotton. Investigators targeted only Ronald, and it took more than a decade before DNA evidence proved the conviction had been erroneous, with the true perpetrator excluded from both the photo and the physical line-up.

Ronald was incarcerated for 11 years after a crime in which he was completely uninvolved. Jennifer was brutally attacked, convinced by flawed investigatory procedures that Ronald was the culprit, and put through two trials at which she had to testify against her presumed attacker. Many other actors shared in the misconception. Two different juries of twelve men and women found him guilty and sentenced Ronald to die in prison; police investigators, prosecutors, and judges all participated in a process leading to a tragedy. Years later, Jennifer then was presented with the fact that Ronald was not the true culprit and that all the evidence had been misused, targeted wrongly at an individual who was innocent. Wrongful convictions are like judicial train-wrecks; no one wins.

But wrongful liberty is the flip-side of most cases of wrongful convictions, and Jennifer’s case also exemplifies it. Immediately after his crime against Jennifer, which ended only when she ran for her life, the perpetrator attacked another victim. Over the next few months he engaged in an extensive crime spree. By the time he was found, his crimes included multiple first degree sexual assaults, three first degree rapes, almost two dozen first degree burglaries and many 2nd degree rapes.

In April of 1985, he was caught during an attack on another victim in the same neighborhood as Jennifer’s crime some 10 months before. Neighbors hearing screams called the police, and Bobby Leon Poole was shot in the leg and apprehended, ending a long career of crime and violence. His victims were old and young, black and white, but all had elements in common: single women living alone, no barking dogs, severed phone lines, broken porch lights, and a weapon.

LuAnn Mullis, Poole’s last victim, commented recently to Jennifer: “After finding out what had occurred in Ronald’s and your case, … I became angry at the missed opportunity of the justice system to have removed Bobby Poole from society earlier…. If they had done it right then, what happened to me would not have occurred.… The first point of blame is the perpetrator; he did it. He showed no remorse. The second point of blame is the system.”

LuAnn Mills would never had been subject to a brutal attack if Bobby Poole, rather than Ronald Cotton, had paid the price for the crime against Jennifer. The justice system got it wrong, and LuAnn became the victim of a crime of wrongful liberty. When police investigators wrongly targeted Ronald Cotton, Bobby Poole continued his rampages, the community was made unsafe, and ultimately LuAnn paid the price.

In our adversarial criminal justice system, it is easy for some to discount claims of innocence. After all, our judicial system assumes that “it is better that ten guilty persons escape than that one innocent suffer.” Faced with arguments about the possibility of innocent individuals sitting on death row, former Justice Antonin Scalia wrote that there has not been “a single case—not one— in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops.” Indeed, many commentators believe that concerns about wrongful convictions are over-blown, as Justice Scalia certainly did.

But focusing on the harm done to those wrongfully incarcerated misses the point that when we leave perpetrators out on the street we make our communities unsafe. Tough-on-crime commentators get it wrong when they give short shrift or little empathy to those who are wrongfully convicted, if only because for every exoneration there may be many crimes of wrongful liberty which should never have occurred.

In fact, our research suggests that tens of thousands of individuals have been victimized by people who would have been in prison if the justice system had worked as it should. All parties in the criminal justice system can come together to protect the community from preventable crimes of wrongful liberty.

The number is unknown, but certainly numerous

It is hard to say how often crimes of wrongful liberty occur because many perpetrators are never found, or never linked to the original crime of wrongful incarceration. Indeed, we do not know how often the wrongfully convicted remain in prison with no discovery of the error.

Some cases of wrongful incarceration involve no underlying crime (for example, when arson investigations go wrong, pointing to a purposeful and deadly fire, when really there had been only a terrible accident, or in some sudden infant death cases where the mother may be convicted of a murder when there had only been a natural catastrophe; many alleged child sex crimes have proved to be erroneous). But where there was indeed a crime, it stands to reason that if we arrest an innocent person we leave the guilty one free. We just don’t know how often it occurs.

Baumgartner and colleagues recently published an analysis of crimes of wrongful liberty for one state, North Carolina. Starting with 36 exonerations (for which individuals wrongfully served a total of 387 years in prison…), they found eight cases where the true perpetrator was subsequently arrested. Of these eight individuals, six committed further crimes; in fact, they were convicted of 99 subsequent crimes, including 35 felonies and 13 violent crimes.

Of course, they may have committed other crimes which were never discovered or prosecuted, and others wrongfully left at liberty may have committed more crimes. So we know that these 99 crimes represent a tiny fraction of the total number of crimes, reported and unreported, of those wrongfully left free when the wrong individual was arrested.

The Innocence Project listed in 2016 a set of 344 individuals exonerated, with 148 perpetrators identified. (Their cases are limited to those where DNA is available, so a higher percentage are linked to the perpetrator.) These perpetrators were later convicted of 34 murders, 77 sexual assaults, and a total of 146 additional violent crimes.

It is probably more sensible to look at how many crimes are associated with identified perpetrators, rather than how rarely we connect the exoneration to a perpetrator. Except for the “no crime” cases, we can safely assume that virtually all cases of wrongful convictions involve perpetrators wrongfully left at liberty. On a per-capita basis, these individuals commit a lot of crime.

University of Michigan Law Professor Sam Gross, cofounder of the National Registry of Exonerations, and colleagues estimated that about 4 percent of all modern death sentences have been erroneous. This would suggest over 300 innocent death-row inmates; though only about 160 have been actually exonerated. Wayne State University professor Marvin Zalman, an expert in wrongful convictions, has reviewed the literature on wrongful convictions, finding estimates from 1 to 5 percent of all felony convictions.

Zalman notes that there are about 1 million felony convictions in a given year (a roughly accurate estimate, according to Bureau of Justice Statistics data), so a 4 percent error rate would translate into 40,000 errors. Some of those may have not involved an underlying crime. But of those which did — most likely the vast majority — if the wrong person is put in jail, then we know that the right person remains free, at least for a time. If we estimate that perhaps one-quarter of the wrongful convictions involve no underlying crime, and three-quarters do, then 30,000 perpetrators are left in a state of wrongful liberty every year.

If we have 30,000 criminals left on the street after we arrest another for their crime, how many crimes might they commit? Some might commit no other crime, if their original crime was a personal issue that would never be repeated toward another. But, judging from the cases reviewed above, a few of these individuals will be very active criminals, virtually terrorizing their communities during their times of wrongful liberty. If they commit, on average, just two crimes, that would be 60,000 crimes each year.

This number equates to about one crime every 10 minutes. Of course, perhaps two crimes is not the right estimate; if it is just one crime per criminal left on the street, that is still a crime every 20 minutes, 30,000 crimes.

Widespread circles of harm

In cases of wrongful incarceration, we often think of the wrongfully convicted as the primary victim of the error. But the original crime victim or survivor is no less victimized; indeed they are doubly victimized—once by the perpetrator, then again by the judicial system. With the wrong person in prison, subsequent victims fall prey to someone who should have been in prison.

These circles of harm must be extended to those surrounding these primary victims: friends, parents, family members, loved ones of each. Judges, legal professionals, police investigators, journalists, prosecutors, jurors, prison officials and everyone involved in a flawed investigation and wrongful incarceration must find a way to reconcile their own involvement, however minor and well intentioned it may have been, in a process that led an innocent individual to serve time in prison while allowing the guilty party to avoid justice. Finally, community members see their faith in the criminal justice system degraded and themselves subjected to increased odds of victimization as long as the system continues to get it wrong.

About the authors: Injustice Watch board member Jennifer E. Thompson, the founder and president of Healing Justice, is the co-author of the best-selling memoir Picking Cotton. Frank R. Baumgartner, the Richard J. Richardson distinguished professor of political science at the University of North Carolina, has undertaken studies of race and its impact on aspects of the criminal justice system, from traffic stops to the death penalty.