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Wednesday, November 26, 2014         

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Hawaii law should allow compensation for people wrongly convicted

By David T. Johnson

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Several years ago a Hawaii prosecutor spoke to my criminology class at the University of Hawaii. When a student asked what she thought about wrongful convictions, the prosecutor claimed they never occur because the system has "too many checks."

I wonder what she is saying now that 41-year-old Alvin Jardine III of Maui has been exonerated by DNA after spending 20 years in prison for crimes he did not commit.

The prosecutor's see-no-evil view is shared by many legal professionals. Judge Learned Hand, widely considered one of the leading lights in the history of American jurisprudence, said that our legal procedure has "always been haunted by the ghost of the innocent man convicted" -- and he believed "it is an unreal dream."

Justice Antonin Scalia of the U.S. Supreme Court recently suggested that criminal convictions in America have an accuracy rate of 99.973 percent. Not quite perfect, but good enough for folks who do not like to be bothered by ghosts.

The ghosts, though, are all too real for the hundreds of American men and women who have been freed from prisons and death rows for crimes they never committed, and for uncountable numbers more who continue to languish behind bars, innocent in every sense except the nightmarish legal one.

The first obligation of a criminal justice system is to make accurate decisions about who is innocent and who is guilty. Accuracy is essential to everything else the system tries to do. Justice is truth in action.

But the evidence is clear and abundant: criminal justice systems frequently fail to find the truth, and criminal justice officials routinely refuse to acknowledge the mistakes that occur.

Mr. Jardine is now a free man partly because of the fine work done by attorneys and students in the Hawaii Innocence Project, and also because his advocates encountered minimal resistance from the prosecutors handling his case. If prosecutors had followed the usual script -- deny, deny, deny! -- the Innocence Project would still be plugging away, and Mr. Jardine would still be wondering when his nightmare will end.

One terrible irony in Mr. Jardine's case is that he could have been released on parole a decade ago if he had admitted committing crimes of sexual assault, kidnapping and burglary -- and if he had undergone sex offender treatment. How's that for a choice: your freedom or your integrity?

Hawaii law makes no promises to victims like Alvin Jardine: no financial compensation, no services, no assistance of any kind. The most he can currently hope for is an apology from the officials who made the mistake that stole 7,000 days of his life. But "Oops, sorry!" is not enough, and suing is unlikely to gain him anything because the U.S. Supreme Court has made it all but impossible to recover damages from the people responsible for miscarriages of justice.

Hawaii's law needs to be changed. So does the tendency of criminal justice officials to deny the reality of ruinous mistakes about guilt and innocence -- sometimes in the absence of malice, and sometimes in its presence.

Paradoxically, if you want to try to eradicate error, you must start by assuming it is inevitable. This is a very different assumption than the one that now animates much thinking about American criminal justice.

There is also a useful supplement to Descartes's cogito ergo sum: "I think, therefore I am," the father of modern philosophy said. To which we can add, "I am certain, therefore I might be wrong."

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David T. Johnson, a sociology professor at the University of Hawaii at Manoa, is on sabbatical leave in Tokyo.





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