That’s well and good, except that the number of innocence claims that can be confidently settled in labs is not infinite, and may in fact be dwindling.
Dow, who teaches law at the University of Houston, has represented more than 100 clients on death row in his 30 years of practice; out of that number, he counts only eight as credibly innocent. He doesn’t suspect that his future will hold many more.
“I think we’ve kind of reached maximum velocity on how much better the technology can get,” Dow said, “And so what that means in terms of innocence work is that you’re not going to have cases where you can do testing five or 10 years from now that you can’t do today. And so if the biological material is collected, it’s obviously going to be tested before the trial occurs.” Mistakes will still happen, Dow acknowledged, but perhaps not the sort of mistakes that lend themselves to decisive rebuttal via scientific revision.
More generally, a 2014 study published by the National Academy of Sciences found that if all of American death-row inmates were to remain condemned indefinitely, approximately 4.1 percent would eventually be exonerated—a proxy for the share of innocent inmates. That’s an admittedly conservative estimate. But even if the number of innocent inmates were doubled, the number of guilty ones would still make up more than 90 percent of death row.
These figures point to a mismatch between the time, energy, and resources devoted to innocence, and the needs of death-row inmates. Although no central organizing entity tracks the budget of every innocence group in the country, and therefore we cannot know how much money is devoted to the cause, Bluestine said it’s very clear where funds aren’t going.
“If you’re looking at wrongful convictions—if you’re looking at cases where investigations weren’t completed properly—there are no resources” for reviewing and litigating those cases, she said. “There are no organizations, no resources for them. And that is horrific, that we can’t address that wrongful conviction because it doesn’t meet an innocence standard.”
John Blume, a Cornell Law professor who has represented more than 100 death-row clients in 37 years, told me that even organizations that do provide legal services to poor clients who may be responsible for the crimes they’ve been convicted of “raise their money around the innocent people they’ve represented … It’s sort of like the fat pig at the trough getting fatter.”
According to Bluestine, unsavory actors have taken advantage of the profusion of innocence organizations to exploit anxious inmates marked for death. “There is this weird cottage industry of folks who are under the radar—and I think they are completely predatory and disgusting,” she said. “They will reach out to folks who are incarcerated, [and] offer to review their case and present it to a conviction-integrity unit, saying it’ll only cost you $2,500. And they have no intention of doing any work.” Bluestine said she has worked with clients who have lost money and resources, such as transcripts with only one extant copy, to scams masquerading as innocence efforts. None of which is to say that genuine innocence programs are responsible for their malicious imposters—only that the proliferation of scattered innocence groups across the judicial landscape has given the fakes room to grow.
Read More: America’s Dangerous Obsession With Innocence