By Robert W. Hoelscher
Deputy Director, Innocence Project of Texas (ITPX)

Do you believe people in Texas get convicted of crimes they did not commit? If you do, what do you think we should be doing about it? And whatever we’re doing about it, are we doing enough?

Let’s start with the first question. The answer is simple: Yes, people in Texas get convicted of crimes they did not commit. Why yes? Because to believe that false convictions never happen is to believe that the criminal justice system is perfect. Seems a bit of a stretch to believe that anything could be perfect, no?

But for many years, believe in perfection we did. The distinguished federal judge Learned Hand called the prospect of false convictions an “unreal dream.” And although books, films and other media would tell tragic stories about false convictions, those stories were make believe. In the real world, we went right along with Judge Hand. We may have easily accepted the notion that human beings make mistakes. But not THOSE mistakes.

The real world began to change, courtesy of DNA testing. According to the Innocence Project, 349 individuals convicted of serious crimes have been proven innocent due to DNA testing since 1989. In 149 of those cases, the real offender was identified. The National Registry of Exonerations reports 304 exonerations in Texas alone, including 57 exonerations based on DNA testing.

It turns out that Judge Hand’s unreal dream is quite real. What then should we be doing about false convictions?

When society is presented with a people problem, we have five options:

1. Let the individuals with the problem deal with it (the do nothing/you’re on your own option)
2. Let the government/public sector deal with it
3. Let the business/private sector deal with it
4. Let the nonprofit/social sector deal with it
5. Some combination of 1-4.

The Texas response to finding and correcting false convictions has been a government/nonprofit hybrid solution (#2 and #4 above). The state gives $100,000 per year to each of the six public law schools in the state (Texas Southern, University of Houston, University of Texas at Austin, Texas A&M University, Texas Tech University and University of North Texas). These law schools offer innocence “clinic” in which students earn academic credit for working on false conviction cases. The state innocence project program, administered by the Texas Indigent Defense Commission, was started in 2005 and the annual state investment has increased only once since then.

Our organization, the Innocence Project of Texas (not a branch or chapter of the Innocence Project in New York City) is a free-standing nonprofit that, in addition to our own work serving the falsely convicted, partners with the Texas Tech and Texas A&M law schools. Also engaged in finding and correcting false convictions are conviction integrity units (CIU) operating within district attorney offices in Dallas, Fort Worth, San Antonio and Houston. Finally, there are public defenders and private attorneys who work on false conviction cases.

So that’s what we’re doing in Texas. Are we doing enough?

To answer that question, we have to think about what the goal should be. At IPTX, our view is that we should find and correct a false conviction for each false conviction that happens. In theory, over time, each and every false conviction is corrected. Yes, perfection is impossible, but we believe that should be the goal.

Now we get into some math. For that, there are three important numbers, two we know and one for which we can only use an educated guess.

The two numbers we know are 1) the number of felony convictions in Texas each year (from Texas court data) and 2) the number of exonerations in Texas each year (from the National Registry of Exonerations).

The number we don’t know is exactly how often false convictions happen. We know it’s not zero, but it’s not 100% either. There have been several serious attempts to pin down this number. The most conservative estimate seems to orbit around the just under 1% to 4% range. What jumps out is how a very small error rate still means one helluva lot people. Let’s play out one scenario.

Each year, there are over 100,000 felony convictions in Texas. Even if the false conviction rate is on the low side, let’s say one half of 1% (one in every 200), that is still 500 false convictions. Compare that number to the annual number of exonerations (corrected false convictions), which in Texas averages about 22 over the last five years. In this scenario, 500 false convictions are being created and only 22 are being corrected.

The difference between the actual number of exonerations and the projected number of false convictions is what I call the “liberty gap.” If we believe that false convictions are a bad thing, our desire should be to push the liberty gap as close to zero as possible.

To be sure, the false conviction battle in Texas has been engaged. But also to be sure, false convictions are very likely still winning.

Are we doing enough? Not yet.