Asymmetrical Information - Megan McArdle

01.23.13

The Innocence Penalty

The innocent do worse in prison than the guilty

One of the cruelest ironies for innocent people who get sent to jail is that their innocence gets them worse treatment than the people who actually committed the crimes they were convicted of.  Their refusal to admit their "guilt" gets them longer sentences and often makes them ineligible for parole.  And Radley Balko says that there are other, subtler tortures:  

Call it the innocence penalty. Innocent people are much more likely to refuse to admit to their crimes--before and after conviction. (Although it still happens.) That "lack of remorse" often moves prosecutors to throw the book at them, judges to give them longer sentences, and paroles boards to keep them behind bars for as long as possible.

There are other, more subtle ways the innocent are often punished more severely than the guilty. A few years ago, Richard Paey -- a Florida man given basically a life sentence for his supply of painkillers, even though even prosecutors conceded he was likely using them only to treat his own pain -- told me about them.

I didn’t do very well in prison. Fortunately, one of the prison doctors was very kind to me. He said he saw in me what he called 'the consciousness of innocence.' It’s very dangerous. He said if you bring it into prison with you, you will have the most horrifying experience that a human being can possibly have. You won’t survive. You have to acclimate and accept your situation and not resist. You can’t keep holding on to your innocence. You have to let go of it and start acclimating.

In some sense, we're turning innocent people into guilty ones. Given these terrible costs, we would hope that prosecutors would be keenly alive to the ever-present danger that they have made a mistake.  Unfortunately, what we see is often the reverse.