By James Kilgore, Truthout

How many US prisoners are wrongfully convicted? And how many are technically "guilty" but still should not be locked up?

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After more than three decades of sleepwalking, mainstream America is waking up to the fact that the dragnet of mass incarceration has captured lots of innocent people. In the past few months, media productions framed around this notion of innocence have gone viral. Millions of "Making a Murderer" viewers are following the case of Stephen Avery, a middle-aged white man, as he appeals a questionable murder conviction. Avery previously spent 18 years in prison for a crime he definitely did not commit. An online petition requesting President Obama to exonerate Avery and free him immediately has drawn more than half a million signatures.

On the audio front, "Serial" has shocked the podcasting world by receiving over 80 million downloads. The 12-part series focuses on the murder of 18-year-old Hae Min Lee in 1999 in Baltimore. The courts convicted her ex-boyfriend, Adnan Syed, of the crime and sentenced him to life in prison. Sarah Koenig, the host and executive producer of "Serial," spent over a year unpacking the details of the case. Her efforts likely helped catalyze the state court's decision to review Syed's request for a retrial last month. The judge has yet to rule. Koenig and co-creator Julie Snyder have launched a national speaking tour, "Binge-Worthy Journalism," charging up to $125 per ticket to tell the story of their investigative adventures. The innocence industry is both opening minds and gaining market share.

The Innocence Project

The trope of innocence has also drawn increasing traction in legal circles. More and more lawyers, justice activists and convicted people themselves are pouring time and money into overturning wrongful convictions. Last year set a new record for exonerations -- 149, bringing the total on the National Registry of Exonerations to over 1,700. The Innocence Project, an investigative nonprofit, has freed over 300 wrongly convicted people by using updated DNA technology. The roll call of high-profile exonerees continues to expand: the Central Park Five, the Dixmoor Five,Mary Virginia Jones and Derrick Williams, just to name a few.

Many of those released have won large settlements. The state of Illinois granted Juan Rivera $20 million for his 19 years of wrongful incarceration for murder. The top payout to date was a court award to the Dixmoor Five of $40 million, to be shared among the men.

An excessive focus on innocence may be as much of a hindrance to understanding mass incarceration as a source of enlightenment.

These exonerations and releases represent an enormously positive step, transforming the lives of those who have been wrongfully punished and helping remind excessively eager law enforcement personnel that someone is watching. They also highlight key flaws in the system, particularly those wrought by overzealous prosecutors, violence-prone police and obsessively punitive judges.

The drama of this process can be overwhelming. Watching the reaction of the daughter of Juan Luis Vargas to her father's exoneration after 16 years of wrongful imprisonment can easily prompt an emotional meltdown. Listening to Darrell Cannon describe the torture that led to his confession to a murder he did not commit, and a subsequent 24 years of wrongful incarceration, is an ultimate lesson in humility. Even more so when at the end of it all he describes himself as "blessed."

Yet, these exonerations also prompt questions about the more than 2 million people who remain behind bars. How many of them are innocent? But perhaps more importantly, how many of them are technically "guilty" but still should not be locked up?

"Innocence" as Hindrance

An excessive focus on innocence may be as much of a hindrance to understanding mass incarceration as a source of enlightenment. The notion that the major fault in our criminal legal system is putting "innocent" people behind bars ultimately keeps the mainstream United States in its comfort zone. Such a perspective sustains the faith in a US criminal legal system largely designed and run by lawyers from Harvard, Yale and Princeton. The solution, according to this framing, is to weed out the few "bad apples," tweak a few of the excessively punitive laws and upgrade management systems. An emerging body of literature, typified by Adam Benforado's Unfair, furthers this notion by systematically pointing out all the technical ways in which the court process produces bias and treats questionable forensics as flawless science. As he put it in a New York Times op-ed: "we now have tools -- from experimental methods and data collection approaches to brain-imaging technologies -- that provide an incredible opportunity to establish a new and robust foundation." He concludes by assuring us that "an evidence-based approach also illuminates the path forward."

The approach of Benforado and others may unearth some of the inequities. However, we need a different framing to get at the systemic nature of the problem. In fact, it is quite likely that the majority of people who are imprisoned may be technically "guilty." They were holding the drugs; they did have the gun in the glove compartment; they did fall asleep in the doorway of the shop; they did jump the border fences and race to the nearest town. They are guilty, not due to a miscarriage of justice within the system, but because the lawmakers, the judiciary, the prison profiteers, the lobbyists, the police and prison guard unions, and the majority of voters have constructed a system that sets them up to be guilty. The system has framed them by their poverty, their race, the part of town where they live or their gender identity. Freeing the "innocent" frees some people who deserve to be free but leaves the vast majority of the "guilty" to languish in the unfreedom constructed by an unfair system. Reforms designed by the very people who gave us the existing system will not get at the core of the problem.

Domestic Violence

Notions of guilt and innocence further implode when we examine cases of domestic violence. According to Centers for Disease Control and Prevention (CDC) figures, about one in five women and one in seven men experience physical violence from an intimate partner, with about 10 million incidents reported each year. While for years intimate partner violence was excluded from legal scrutiny, the Violence Against Women Acts (1994, 2000, 2005) provided criminal penalties for violent abusers. While this brought relief and protection in some instances, the racist and punitive character of the criminal legal system has led many poor women of color to avoid involving the police even when they are victimized. Moreover, some women, during or in anticipation of an assault, take their own self-defense action.

During the 1970s, a number of high-profile defendants such as Inez Garcia and Joan Little, who had slain their attackers, gained acquittal through the courts. The conclusions reached by both juries and judges indicated the acceptance of the validity of a woman's action in protecting herself from sexual assault. In other words, Garcia and Little were declared "innocent."

However, in the 21st century, public and legal perceptions have changed. The criminalization of poor women of color has rendered them, in effect, guilty until proven innocent. In particular, as sociologist Dorothy Roberts has pointed out, the criminal legal and child welfare systems "function together to discipline and control poor and low-income black women by keeping them under intense state supervision and blaming them for the hardships their families face as a result of societal inequities." Similarly, the rigidities of the legal system create few alternatives other than prosecuting an abuser to the maximum extent of the law or relying on the limited personal capacity of a woman to resist on her own. As journalist Sarah Jaffe notes, "Putting people in jail and violently policing their communities is a substitute here in the United States for social policy."

Regular Truthout contributor Victoria Law, who has researched domestic violence extensively, notes the lack of a systemic perspective in the criminal legal realm. Law told Truthout that it is "still unacceptable to look at root causes of violence," things such as poverty, unemployment and lack of access to affordable housing. She contends that "our other systems [are] failing to prevent gender violence," and that simply relying on law enforcement is not adequate. "How do you get out of an abusive relationship if the shelters are all full, if they aren't acceptable or if they don't accept people that don't speak the same language?"

Such situations create a context where, in the heat of an assault, self-defense may seem like the only viable option. The question then becomes, at what point does a woman defending herself become "guilty"? As Law points out, the legal system is not constructed to deal with the complexities of such situations; "political expediency makes us not want to think about the cases that are messy." The recent cases of Marissa Alexander and Naomi Freeman, both women who resisted the violence of an abusive partner with counterviolence of their own, are illustrative of how narrow definitions of guilt and innocence fail to capture the complexity involved in domestic violence situations.

Political Prisoners

With regard to political prisoners, the case of Chelsea Manning contains similar tensions. In a technical, legal sense Manning is guilty. However, her situation resurfaces the notion of just and unjust laws, which featured prominently in the thinking of Dr. Martin Luther King Jr. In the 1970s, a judge could dismiss the case of Pentagon Papers leaker Daniel Ellsberg on the grounds that it had been tainted by "improper government conduct." However, contemporary courts have shown little proclivity to use such a maneuver to create an effective declaration of innocence for Manning or fellow leaker Edward Snowden. The system makes it so.

The situations of long-imprisoned political prisoners are perhaps even more complex. Apart from questions of technical guilt, as in the Ellsberg affair, "improper government conduct" warrants application in some instances. For example, there is a wealth of evidence that agents of the government's counterintelligence program (Cointelpro) not only infiltrated organizations such as the Black Panther Party, but encouraged violent actions. Complicated questions of guilt and innocence emerge from such situations. To what extent is the state culpable if its agents catalyze and encourage violence, perhaps on a level that would not have occurred in their absence?

In addition, even if we accept the technical "guilt" of some political prisoners, certainly a position figures like Leonard Peltier and Mumia Abu-Jamal would reject, the abusive treatment of many such individuals adds a burden of "guilt" to the state that is rarely acknowledged. The holding of political prisoner Albert Woodfox in solitary confinement for 43 years (Woodfox was just released last month) for allegedly killing a prison guard surely crosses the boundary of cruel and unusual punishment; more so when the wife of the guard maintains Woodfox was not guilty of the crime.

While Woodfox's time in solitary was extreme, the sentences of a number of former Black Liberation Army and Republic of New Afrika members have passed the 40-year mark. In mid-March, Black Panther member Mondo we Langa passed away in a Nebraska prison after more than four decades behind bars. As former political prisoner and director of The Freedom Archives Claude Marks told Truthout, "regardless of guilt or innocence, enough is enough." Marks further posited that some people "made choices" to take actions aimed at "exposing the empire." While such political prisoners are labeled as guilty by the courts, Marks stresses that in other countries individuals such as Indigenous people battling for land rights or Puerto Rican independistas "would be recognized as fighting for their rights."

Ultimately injecting notions of forgiveness, a second chance and, as political prisoner Dr. Mutulu Shakur has suggested, truth and reconciliation into this picture would be more helpful in delivering justice than confining the analysis to the narrow legal, evidentiary approach to guilt and innocence.

The Notion of Innocence

Wearing the hats of prosecutor, consultant, defense lawyer, Bureau of Justice technocrat and, most importantly, elected official, the "best and brightest" minds of several generations have signed, sealed and delivered the system of mass incarceration. They made it all possible.

Reversing the cases of a few hundred or even a few thousand people who are technically innocent is a baby step toward transformation. A much more deeply rooted process is required. Shakur's proposal of a truth and reconciliation commission is but one suggestion as to how the power of the system's designers and sustainers can be confronted. We need others.

Moreover, although the cases of Stephen Avery and Adnan Syed may spark a collective consciousness about justice, they also run the risk of turning the process of unraveling mass incarceration into teledrama, a Netflix moment that absorbs us until the next riveting plot twist. This, of course, comes along with the inevitable expectation of a kind of happy ending justice and freedom for those who are "innocent." Happy endings are the rule of law in Hollywood and mainstream television. But in the federal and state prisons where I spent six and a half years, as well as in just about every other penal institution, happy endings are as rare as filet mignon dinners. 

This article was originally published by Truthout.org on March 26, 2016. Copyright, Truthout.org. Reprinted with permission. 

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