Interview with Jim Liebman, a constitutional law professor at Columbia University. In this interview he discusses the procedural obstacles to fairness which occur in more cases than the criminal justice system can bear to acknowledge.

People get released and there's no investigation to find out what went wrong in this case. It's like a train wreck and you'd say, "Well it doesn't matter, nobody got killed. Of course there were some people hurt, but nobody got killed, so we're not going to find out what happened." That's essentially the way our system works right now. . . That's because we have a system that wants to say, "Where's the procedural problem that occurred here?" You've got to prove there was some constitutional violation that caused you to be convicted if you were innocent. And if it was just a pure mistake, nobody's to blame, the way the system works right now is that there is no basis to get that person out of prison. You get 60 days, 120 days to make that kind of claim, but if you don't make it in the right time after that you've got to show some kind of constitutional or procedural problem that gets you out. . .

Innocence is not enough.

Innocence is not enough. There may be a right in capital cases--it's unclear. But there certainly is no right in any other case to say, "I'm innocent, I can't show anything else that went wrong at my trial. I can only show that I'm innocent." That is not a basis for getting out of prison in this country.

It may not even be a basis for a new trial.

That's right. There are a couple of states that have very long time limits that allow you to bring that kind of a claim over a period of time, but elsewhere if you don't get in within the time period, then you've got to show a constitutional violation. You don't show a constitutional violation, you serve out your time.

People are shocked at that.

Part of the problem is that until DNA became usable ten years ago, it was very hard to ever prove that it was wrong. So the procedures seemed like they were enough. Now it's clear, and maybe we need to change in order to react to the existence of DNA.

But often DNA alone isn't enough.

So the death penalty is distorting our view of the people who are not under sentence of death, but are in prison for ten years, fifteen years, for life. I think if the death penalty were not distorting the system, a lot of prosecutors and attorneys general and others would feel a lot more comfortable about looking at these cases. But they're afraid that they're going to let people go from death row and that's a lot more controversial. . . There's a real fear that in the death penalty cases we're going to have to reopen so many cases if we insist upon getting it right.

There's a certain amount of play in the system and we have to live with that. And there's a real fear that if we want to get perfect accuracy or near perfect accuracy when you open all the death penalty cases and that's way too controversial. And it will bring the death penalty system to a halt. So we don't want to do it there and we can't do it in the non-death penalty area because it creates a precedent for the death penalty area.

So innocence claims suffer because they're in the shadow of the death penalty?

I think that's right. A good example of this is the legislation that Congress passed in 1996. It is called the Anti-Terrorism and Effective Death Penalty Act. So you might think that it has nothing to say about common criminals who aren't under the death penalty. They're not terrorists, they're not under the death penalty. But what that act does is to withdraw procedures after you've been convicted for deciding the legality and the accuracy and the reliability of those convictions. And the category of people who are hurt most by that act are not terrorists and not people under capital sentence, but simply people who were imprisoned for street crime who got something less than the death penalty. No question they have been hurt much more dramatically by that act than any other group. . . And it, of course, reaches people who are innocent. . . . There's no political constituency in this country for prisoners. So everybody in a sense went along with it and it was really an accident of other things that were happening.

Why did this happen?

We were releasing a majority of people off of death row because of these procedural problems and this caused a lot of controversy in a lot of states who believe very deeply in their death penalty. And so what they've done is to say, "We are going to stop that from happening. We're going to preserve our death sentences and we're going to get rid of these procedural protections across the board, capital prisoners, non-capital prisoners." And so the fall-out from the capital cases has been that non-capitally sentenced prisoners have no more procedures left for them either. . .They have nowhere to go. . .

Where does the Supreme Court fit into this?

You can only get in the door if you've got a procedural problem. You can't get in the door if you have only a substantive problem. But now the Supreme Court is saying once you've gotten in the door on your procedural problem, we're a lot less concerned than we used to be about procedural accuracy, we're more concerned about protecting finality and the interests of the state. . . . All they want to hear is, "I had a bad lawyer." Or, "The state withheld evidence." Or, "There was a bad instruction given in my case." Something like that. Then they can send it back to trial for a new jury to look at it. And then if you're innocent, they hope the new jury will figure it out. . .

The Supreme Court recognizes of course that it is a harm to the system if somebody is innocent and in prison or worse, getting executed. But they also recognize that their role is to protect procedural rights. And so they want to be able to say even if we can't do something about it, somebody else can. And the obvious person who can is the governor, and that's what the Supreme Court has said. .

And what can the governor do?

The governor in most states, or the governor working with some kind of parole commission or pardon commission or whatever, has the capacity to release people. . . to limit sentences. But the problem in this country has become, everybody believes that the courts are going to do it, and everybody has made the assumption that the courts will do it. The governor will say, "I don't want to have anything to do with it, the courts will take care of it. If the courts have denied relief, I have no business." And what's happened is we've cut back on our judicial remedies, but everybody's still assuming that the courts are there to do it. And now that we've cut back on judicial remedies, the governor has to come back into the picture. . . .They don't want to do it. Of course it's very, very controversial for a governor to release somebody from prison. . . So, they pass the buck--except nobody's there to receive the buck anymore. . .

So how does the criminal justice system come to grips with mistakes?

Well any system is going to make mistakes sometimes. You think of a factory that's producing goods. Of course some of those goods coming off the end of the factory line are going to be imperfect. In some sense as we live with those mistakes, that's why we have these time limits [on appeals for re-trial]. The time limits say we want finality at a certain point. It's important to just get on with things, to let people get on with their sentences and to get rehabilitated. If they're spending their whole time worried about getting out, they'll never get rehabilitated, never be a sense of retribution and all of that. So we live with a certain amount of mistakes. That has to be the theory of having these time limits.

The important thing, however, is to learn from the mistakes that we make so we don't make them again. And that's my real problem with the way the system works. We release people from prison now fairly frequently, for DNA and other reasons, but when it happens, there's no investigation, there's no inquiry. It just happens and that's the end. . . . They let the people out the back door of the prison and the state in a sense washes its hands of the case and it says, "Look, the system worked. We found the person eventually, we found them before they were executed, so let's just take it as if the system has worked.

If we cared to look, what do you think these DNA cases would tell us?

I think there certainly are more innocent people in prison than we believed. We never could quantify it or think very carefully about it, or in a disciplined way about it, so of course everyone would always say, "Yes, there must be some innocent people in prison." But I think the assumption was that it was a very small number. And the fact that there have been so many people released recently--and there have been sixty people released from death row even on this and other grounds.

You know the other problem of course is that the DNA only shows that there are other mistakes that are being made in all cases, but there are only a very small proportion of cases that actually have DNA in them, mostly rape cases and some kinds of murder cases and things. But think about all those other cases. Those other cases would have exactly the same problems that lead to convictions in the DNA cases, it's just there's no DNA to catch them. So that's the really frightening part is that we may have a lot of evidence here that there are many mistakes being made in cases where we cannot catch it on the basis of DNA. And that's why I think it's so important to have some mechanism to find out what went wrong in these cases, so we can try and stop that from happening in all cases, even those we'll never catch on DNA. . .

It's no one's job to attend to the system as a whole, just to fight to the end in particular cases.

We ask everybody in our legal system to be adversarial. You fight hard for your client. The theory is with two people fighting really hard, the truth will come out. But we recognize that in the criminal justice system we can't quite do it that way because prosecutors, they don't just represent an individual, they represent the whole society, they represent justice. And so we ask them to temper what they do in their adversarial roles by the desire to get justice. But it's a very, very difficult thing to ask them to be very, very adversarial and at the same time, to be concerned with what the judge normally is concerned with. And I think in many cases it's too hard a task and it breaks down. . .

The system corrupts in the sense that people of great integrity and great belief in what they are doing don't have enough constraints in a way to give them the grains of salt to be able to realize that although most of the time they're getting it right, every once in a while maybe they get it wrong and they need to just be willing to acknowledge that.

But the state often doesn't want to know.

I think the O'Dell case is a very good example where the problem lies. It's one thing to say we want finality in the system and we don't want to undermine somebody's incarceration. But O'Dell is dead, it's final. There's nothing that's going to change about it. But there's a significant chance that he was executed even though he was innocent. And now we have the chance to find it out. In any other--in our daily lives, industry--something happened like this you'd say, "Well, let's do an investigation and find out. If there's a problem we'll solve it. If there wasn't a problem, of course then you know we'll be able to say, look the system worked, he was guilty." It just makes no sense to me.

So why aren't they doing it?

I think the only conclusion one can draw from the O'Dell case is that there is a tremendous lack of confidence in the system. Because if there was confidence in the system, the first person to say 'let's do the test' would be the one who was running the system. "I want to prove to you my system works." And I think the fact that people don't want to do that, even though there's no consequence to the state as far as Mr. O'Dell is concerned is that they don't have much faith in the system at this point.