By Brian Forst
Thursday, March 30, 2006

A March 6 Post editorial lamented the District's appallingly low homicide closure rate. Last year just 43 percent of all known homicides reported to the D.C. police department resulted in a prosecution. While this number is low, it turns out that the problem -- most serious offenders evading punishment -- is not unique to the District. Consider the roughly 15 million felony victimizations that occur annually in the United States. Just half of these are reported to the police, and only a million or so defendants in those cases are convicted, leaving well over 10 million failures each year to convict serious, culpable offenders.

Errors on the other side -- wrongful convictions -- are equally noteworthy, even if less frequent. Estimates of erroneous convictions range from 0.5 percent to about 1.3 percent, suggesting something like 10,000 wrongful convictions annually. Civil libertarians have compiled a list of people convicted of capital murder and later exonerated. In 2001 then-Justice Sandra Day O'Connor cited 90 such releases since 1973. At last count the number had risen to 175.

But the problem of such errors is more than a matter of counting misses on both plates of the scale of justice. Even if there are many more failures to convict than wrongful convictions -- and even if no one has been wrongfully executed in the 30 years since the Supreme Court reinstated the death penalty (no one really knows) -- wrongful imprisonments impose huge costs on innocent people: loss of freedom, lost companionship of loved ones, lost livelihoods and difficulty getting decent jobs after years in prison. And they impose parallel losses on families and friends of the wrongfully convicted and services lost to the community. These are extremely costly errors.

And they are gross injustices. Perhaps the greatest cost of wrongful convictions is their corrosive effect on the legitimacy of the criminal justice system. Typically a product of erroneous witness identification and bad luck, wrongful convictions seriously undermine the public's confidence in police, prosecutors and the courts. They are double errors, reflecting also failures to bring to justice those who actually committed the acts, sometimes enabling the commission of further crimes.

In his last days in office as Virginia's governor, Mark Warner took unprecedented action to deal with the problem. He ordered thousands of decades-old cases involving DNA evidence to be reopened following the discovery of files containing meticulously preserved samples of blood, semen and saliva, ready for retesting using technology that had not been available when the evidence was originally collected. DNA analysis of evidence in a small sample of these cases induced Warner to pardon two inmates wrongfully convicted of rape. This work to expose and correct errors of justice -- and to validate the accuracy of other old cases -- may prove to be Warner's greatest legacy, not only to Virginia but to the nation's criminal justice system.

Some errors of justice are inevitable, but we could manage them much more effectively than we do. Sophisticated systems are in place to manage mistakes in other fields: scientific research and production processes, for example, or to balance the risk of loss against the yield in financial portfolios. And yet no such systems exist with regard to the vitally important business of determining guilt or innocence in criminal cases.

This can be fixed. The use of modern management methods and more widespread availability of effective forensic technology could go a long way to solve more of these crimes and reduce both types of error. DNA evidence gives us a unique window into errors for those crimes for which the evidence is available and relevant. We can use this window to estimate rates of errors for those crimes. We can do more to assess the social costs of both wrongful convictions and nonconvictions for each major crime category: The costs to the community of failures to convict serial rapists and one-time shoplifters are clearly in different leagues. We can learn more about the relationships between police and prosecution policies and errors of justice. And in old, settled cases with valid DNA evidence, as in Virginia, we may be able to find further errors of justice and correct them. Better late than never.

The writer is professor of justice, law and society at American University's School of Public Affairs and the author of "Errors of Justice: Nature, Sources and Remedies."