Innocence is the last lock on the prison gate. Until a generation ago, wrongful conviction was perceived as an oddity in the well-oiled machinery of justice. But 30 years of exonerations, forensic reforms and wrongful conviction statistics have redrawn the landscape, which now includes computerized risk assessment.

Assertion of innocence is an exclusive franchise, the hallmark of client autonomy. See McCoy v. Louisiana, 138 S.Ct. 1500 (2018). And it does not evaporate with conviction. See generally Charles Loeffler et al., “Self-Reported Wrongful Convictions Among Prisoners,” SSRN (2017); Samuel R. Gross et al., “Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death,” 111 PNAS 7230 (2014).

Moreover, statistics from the National Registry of Exonerations (NRE) show that 15 percent of total vindications originated from guilty pleas. See Innocents Who Plead Guilty (NRE 2015); Guilty Pleas in “Group Exonerations” (NRE 2015); and Guilty Pleas and False Confessions (NRE 2015).

However, parole boards, like courts and prosecutors, believe that only the guilty leave courtrooms to board prison buses. So, rehabilitation, redemption, and risk of recidivism are measured against their acceptance of guilt.

Many in prison suffer an identity crisis: They are the innocent trapped beneath a veneer of guilt. They are also those who have lost confidence in justice, feel victimized and ill-treated, and labor under an inescapable psychology of isolation and torment. See Leslie Scott in “It Never, Ever Ends”: The Psychological Impact of Wrongful Conviction, 5(2) Am. U. Crim. L. Brief 10 (2010).

And as yet, no computerized assessment tool takes this into account.

Innocence as Identity

For the innocent, incarceration hijacks personhood, closes off avenues to freedom, and culminates in a senseless laboring to nowhere, for all the rules and procedures that are the key to freedom hinge on guilt.

Prof. Daniel Medwed has suggested that confirmation of guilt, like the seriousness of conviction, should not be overarching; and innocence claims should be not be a disqualifying factor in evaluating release. See Under Pressure: The Hazards of Maintaining Innocence after Conviction, SSRN (2014); Innocent Prisoner's Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings, 93 Iowa L. Rev. 491 (2008).

Indeed, the Court of Appeals in Silmon v. Travis, 95 N.Y.2d 470 (2000) almost acknowledged as much:

“[P]etitioner's personal refusal to admit the specific facts of the crime at the time of the Alford plea did not constrain the Parole Board's ensuing responsibility to confirm, within a reasonable probability, that petitioner is ready to rejoin the community. This is so for a convicted defendant who maintains innocence at and after trial, for a defendant who allocutes to the facts but later declares his innocence, and it is also the case here.”

The innocent in prison are subjected to prejudice for rejecting guilt ascribed by an imperfect system. Frankly, justice does not know what to do with an innocent after they are convicted, so they are molded into the guilty, and punished all the more for complaining.

Incarcerating the innocent is a continuing constitutional violation. And while a parole board cannot adjudicate innocence, they should not penalize prisoners for asserting it.

Imagine the inner life of innocent persons serving an unjust sentence, their reactions, responses and resignation. Without this human reassessment, how can a machine-based risk analysis tool understand it?

Guilt for Innocent's Sake

An expression of innocence at a parole hearing should be no more damning than a plea withdrawn in court. For instance, in People v. Spitaleri, 9 N.Y.2d 168, 173 (1961), the court held: “We should say flatly and finally that a plea so allowed to be withdrawn is out of the case forever and for all purposes.”

The Supreme Court in North Carolina v. Alford, 400 U.S. 25, 37 (1970), later explained this calculus:

“Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.”

Ours is an innocence blind culture. From perp walks and police blotters, to walls of shame and crime shows, the public mind is saturated with morally uncompromising images of guilt. They give no quarter to doubt, mitigation or error; and ignore the unvarnished truth that the innocent plead guilty and juries can be wrong.

The assertion of innocence is a declaration of dignity. Residual doubt humanizes justice and rescues decision-makers from an impossible moral dogmatism. For no jury convicts beyond all uncertainty, no guilty plea accepted without reservations, no sentence imposed to moral perfection.

Justice for the innocent comes too late in a courtroom. See People v. Tiger, 2018 NY Slip Op. 04377 (NY 2018). So, it remains for an enlightened parole system to absorb the insights of judges and scholars. See Albert W. Alschuler, “Nearly Perfect System for Convicting the Innocent,” 79 Alb. L. Rev. 919 (2016); John H. Blume, and Rebecca K. Helm, “The Unexonerated: Factually Innocent Defendants Who Plead Guilty,” 100 Cornell L. Rev. 157 (2014-2015); Jed S. Rakoff, “Why Innocent People Plead Guilty,” N.Y. Rev. of Books, Nov. 20, 2014.

Conclusion

The guilty and the innocent inhabit different worlds. The former has the option of expressing remorse, pursuing rehabilitation, and seeking redemption. The latter is burdened by disbelief, disillusionment, and disenfranchisement.

It is disingenuous to allow that people can admit guilt while professing innocence (Alford), jettison innocence to accept a plea bargain (Spitaleri), but then hold it against them when they exercise their last unsurrendered chance to reclaim it at a parole hearing.

Crafted in courtrooms and across negotiating tables, guilt is the price of freedom demanded by plea bargains and parole boards. So, parole seekers must sacrifice their belief in themselves one last time, and perhaps forever, until Parole Boards see that innocence is part of the guilt assessment.

Ken Strutin is director of legal information services at the New York State Defenders Association.