Exonerations are like earthquakes. Loud and terrifyingly disruptive, they leave upheaval and ruin in their wake.
Several years ago, I represented Kash Delano Register, an innocent man who spent 34 years in prison for a murder he did not commit. I approached his case as I did my others, all of my mental energy was consumed by how to win in court. That laser-like focus was effective: Kash was exonerated on November 7, 2013.
Exonerations are like earthquakes. Loud and terrifyingly disruptive, they leave upheaval and ruin in their wake. After the euphoria of Kash’s release came the rude realization that getting him out of prison was a small step in a much longer journey I knew nothing about. The severe psychological damage Kash and his family had experienced did not magically dissipate with his sudden freedom. http://www.slate.com/articles/news_and_politics/jurisprudence/2015/05/exoneration_for_the_wrongfully_convicted_innocence_project_lawyer_says_life.html.
As with all wrongful convictions, the harm spread, seeping and tainting other lives. The concentric circles of people who had participated in bringing about his wrongful conviction were devastated. A key witness who had not come forward at the time wept on the stand from guilt and the trauma of having to relive the worst experience of her life. Afterward, one of Kash’s jurors called me. “I will never forgive myself,” he said.
Kash’s case changed my life. Afterward, I no longer wanted to live in an adversarial universe of winners and losers. I was hungry for an approach to criminal justice that held the promise of healing broken lives and preventing more horrific breakdowns in the system. I wanted to figure out a way to end the need for exonerations by not locking up the wrong people in the first place.
Since 1987, more than 1,600 innocent people have been released from prison. Seventy-five percent of these exonerations did not involve DNA. This surprises many people, but there is no DNA to test in most criminal cases, which means that even its regular collection will do little to stem the tide of false convictions. And it is a tide—a rising one. In 2012, a record setting number of people were exonerated. That record was broken in 2013, and broken again in 2014.
The men and women who have been exonerated to date are only a small fraction of those who deserve to be. Of the 2.2 million people incarcerated in the United States, approximately 2-3% have been falsely convicted, according to conservative estimates. On any given day, somewhere between 44,000-66,000 innocent people are in prison. According to the National Registry of Exonerations, 60% of wrongful convictions are the result of misconduct by law enforcement. Nearly one-quarter arise from mistaken eyewitness identifications. Statistics deliver other ugly, undeniable facts. The majority of those locked up from crimes they did not commit are people of color. Overwhelmingly, they are poor.
The stories of the wrongfully convicted are gut-wrenching, shocking, and tragic beyond belief: decades of lives stolen, isolated from loved ones, and often subjected to physical and sexual abuse in prison. In every single case, the harm extends far beyond the wrongfully convicted and their family members. The original crime victims—who experienced violent assaults, rape, the murder of a mother, brother, sister, or child—are left to watch as stricken bystanders. Worse, many survivors played a role in the wrongful conviction because they mistakenly identified the innocent person as the attacker. Their trauma is compounded by confusion and guilt because they now feel like perpetrators themselves.
The media coverage of exonerations tends to gloss over these harsh realities, obscuring powerful narratives and larger truths. What the public sees is a snapshot in time: the moment of exoneration, the embrace between the client and his tireless attorney. We finish the reading and think, “Thank goodness the horror is over! Now comes the happily ever after.” But as I learned through Kash’s case, it isn’t over. Not even close. The role that the criminal justice plays in correcting the legal error is, turns out, only a piece of the story.
The real questions are: Can these broken lives be mended? And, can an improbable group of people—exonerees, crimevictims, their families, and the police and prosecutors who contributed unwittingly to the false conviction—come together to advocate for the reforms that our criminal justice system so desperately needs? There is a new movement afoot that aims to answer these questions affirmatively, using a centuries old practice called restorative justice. The goal of restorative justice is to bring together offenders, victims, and their communities to come up with a way to make reparations and to heal rather than to mete out punishment. It is a justice of collaboration and empathy borne of shared trauma and a will to move beyond it.