The Functions of Wrongful Convictions
Woe unto you, scribes and Pharisees, hypocrites! For ye are like unto whited sepulchers, which indeed appear beautiful outward, but are within filled with dead men’s bones, and of all uncleanliness.-Matthew 23:27, KJV
They say the purpose of the system is what it does, but is anyone dumb enough to believe that? Does the combination of inertia and unintended consequences not strike you as infinitely more likely than the conspiracy theories this view would require? We can grant that at a certain point, a devolved system may have as its primary output something undesirable, and in some cases a bad actor may even co-opt the broken system, transforming its purpose to what has become its main function. But that’s a rare outcome; more often, incompetence and institutional sclerosis are the culprits. But the saying persists, because of an intuitive appeal you can understand if you know a little sociology.
Broadly speaking, sociology is divided into different paradigms. The most established is “structural functionalism,” which assumes that a society is essentially like an organism, and aspects of a society are like bodily processes. Properly applied, functionalism does not believe absolutely in its assumptions; no sociological paradigm is actually useful if you assume its assumptions. Paradigms in sociology are like lenses in microscopes: they reveal things that are not as readily apparent when you use the other ones. The other most prominent paradigm is conflict theory, which assumes that conflict is actually foundational to society, rather than that different elements of society function together.
You can actually make a “purpose is function” argument from either a functionalist or conflict perspective. The conflict approach will often involve analyzing the situation in a way that looks somewhat conspiratorial; Marxism is after all the most prominent of all conflict theories. But the functionalist view can also sound a bit sinister. One view, somewhat popular among functionalists, is that crime actually serves a public function by providing examples of how not to behave. However, it is possible, useful even, to examine a system’s failures from the point of view that something that was not intended can nevertheless be used to achieve an outcome someone desires.
Consider for example the case of Lucy Letby, convicted murderer of many babies. I first heard about this case a while ago, and I was concerned. Essentially, Letby was accused and later convicted of murdering babies in absolutely horrific ways; sometimes, this was by overfeeding them or pumping their stomachs with oxygen. The prosecution theory of the case is that this would distend the stomach and put pressure on the lungs, which inhibited the infants’ breathing. But some of the babies she was convicted of killing–and others she was only accused of attempting to murder–didn’t die that way. There were other theories: injections of air into their blood and insulin overdoses, mainly.
To say the evidence against her is confusing would be an understatement. And people are starting to talk about it, even though the British court is trying to prevent that. The prosecution changed its theory of the deaths on a few occasions, the experts shifted their opinions, and much was made of cryptic notes Letby wrote to herself. At the same time, the hospital she worked at was not performing as well as we’d like. Of course we all want well-functioning hospitals, but this is Britain, where the National Health Service is just about the be-all-end-all of medicine. The NHS’ enduring popularity is something of a myth: as of the most recent polling, only 24% of Britons appear to be satisfied with the NHS. That appears to be tied to things that are pretty normal with government-run programs: mismanagement, inaccessibility, and underfunding all rate mentions for why Britons are unhappy. The point is not to praise or condemn the NHS, but to point out that there are problems with it that might be mitigated, from a public relations view, by a convenient scapegoat.
That is one of the main functions of a wrongful conviction: the maintenance of public opinion in the government, when faced with good reasons for public opinion to decline. It would be a mistake to view such convictions only in such a sinister light; wrongful convictions are, after all, just a subset of all convictions. Of course convictions are generally intended, as one role among many, to place the blame on a wrongdoer. My point isn’t that governmental bad actors engineer wrongful convictions on purpose; sometimes they do, but those are exceedingly rare. What is much more common is a species of confirmation bias. Police and prosecutors are system actors. It is not conducive to good mental health to knowingly forward the aims of a corrupt system. For that reason, people who are part of a system are often the worst ones to go to for an honest accounting of the system’s problems. Their intuition about themselves says “you are a good person, and you wouldn’t work for a system that does terrible things.” They therefore are more receptive to information and narratives that say “the bad outcomes in the system are not because the system is bad; to the extent the system did something wrong, it failed to prevent wrongdoing rather than actually caused the bad outcome.”
A wrongful conviction can serve the purpose of salving the consciences of people who uphold a system that fails, or even produces worse outcomes than would exist in the absence of the system. At this point it is important to note the often widely divergent roles of reality and perception. Everyone who works in a failing system encounters from time to time evidence of how bad the system is. This often gets brushed off; it was a one-time event, it was because of a freak accident, whatever. But it rests in your memory. And sometimes, you start to fear that things are not only worse than you want to admit, but even worse than they actually are. The NHS is a good example.
I just about hate myself for saying this, but the NHS is not in fact a total shit show. Yes, it has a lot of problems. No, it is not ideal to have the government run essentially all the health care in a country. But you can answer the question “how bad is the NHS” pretty well just by asking what other healthcare system you’d prefer. The U.S.? Yeah, I’ll take that one over what’s going on in the U.K. But the NHS still has more to offer than most of the rest of the world. That it is undesirable compared to the American system just means there’s something better, it doesn’t change the fact that, all else being equal, you’d rather be diagnosed with cancer as a U.K. citizen than a Sudanese one.
But if you’ve been quietly ignoring warning signs, and hearing about some trouble in other parts of the system you don’t personally participate in, the fear that you are on a sinking ship can become pervasive. That is one of the worst things about dishonesty: it eventually warps the perceptions of even the liar. “And for this cause God shall send them strong delusion, that they should believe a lie.” 2 Thessalonians 2:11. It’s a phenomenon so common, even Paul knew about it.
We are confronted here with two competing impulses that essentially follow a thesis>antithesis>synthesis pattern. Thesis: I am a good person who doesn’t work for something terrible. Antithesis: I see and hear about many things in my organization that are terrible. Synthesis: there is some kind of saboteur attacking the thing for which I work.
Lucy Letby appears to have been designated the saboteur of the NHS. The hospital at which she worked did a lot of things wrong; it appears that children didn’t get the quality of care they needed, and this was compounded by inadequate prenatal care to expectant mothers. There were doctors who seemed not to know how to do things they should have been able to accomplish. The frustrating irony is that things actually weren’t as bad as they could get. The situation could have been fixed, though that would require acknowledging that some doctors weren’t as competent as they should have been, that more staffing and therefore money was required. Above all else, it would have required the government to tell its people “we fell down on the job, and babies died. It is a tragedy, and we accept responsibility.” No one wants to do that, even though the alternative is jumping from crisis to crisis, each of which might blow up into a genuine scandal.
Of course, there is an even more important function that wrongful convictions serve: covering up the failures of the justice system itself. For this function, the most important case might be that of the West Memphis Three. The basic contours of the case are famous, and more information can be found in Mara Leveritt’s excellent book, Devil’s Knot. In 1993, three boys were murdered in West Memphis, Arkansas. The next year, three teenagers were convicted of the murders, two of them were sentenced to life in prison without parole, and the third received the death penalty.
It is unlikely, or at least not as likely, that those three would have been arrested if the police and their attendants were even basically competent. Even the lead detective, the most capable of the investigators, eventually succumbed to temptation and grabbed easy targets rather than dig in and find the real killer. There were a lot of cultural neuroses that got wrapped up in this case, the biggest by far being the absolutely ludicrous Satanic Panic. But the lead detective, Gary Gitchell, probably wouldn’t have fallen into that trap but for other extraordinary failures.
Keep in mind that the murdered boys disappeared one evening, and were not found until the next day. The boys had been submerged in water, and their bodies were horrifically mutilated. It turned out later that most of the damage to their bodies resulted from post-mortem animal predation, but Gitchell did not know that. The reason he didn’t know that was the Arkansas State Crime Laboratory. That negligent institution took a month to get Gitchell autopsy reports, in which time rumors spread like wildfire. And when he finally got the reports, they were full of bullshit. Later investigation revealed these failures, but at the time the man was under an unbelievable amount of pressure to solve three heinous murders.
This is the most obvious type of case where a false conviction will be desired unless the conviction is too obviously wrongful. People are enraged, terrified even, of a murderer in their midst. And the main defendant, Damien Echols, was the type of contrarian asshole who people already don’t like; it was much too easy to manufacture a case against him. It was so easy in fact that the manufacturers didn’t even know the case was manufactured. They wanted to believe, because in this case belief was a warm blanket of perceived safety.
It wasn’t actually as simple as that makes it sound; nothing is when we’re talking about such a complicated case. There were pre-existing problems with the police department, which was under investigation by the state police for allegedly stealing from the evidence room, although Gitchell himself was not implicated in that investigation. There was a lunatic juvenile probation officer who fancied himself in the role of Witchfinder General. There were careers to be made and lost. But one irreducible part of the process, without which the whole case would not have happened, was the inability of the system to find the real murderer.
Wrongful convictions in free countries are, in every case, failures of the system. They are situations where the safeguards fail. But that doesn’t mean they don’t serve a function. Purpose does not equal function, but at the same time it is misleading to see only a system when the system is in fact made up of human components. Sometimes, some of those humans set out to actually frame someone, though that is very rare. More commonly, scared or unethical actors in a system take advantage of the system’s failures, and this is tolerated or even undiscovered because the system’s failure works as something of a silver lining. Yes, the evidence against Letby was stunningly bad; her conviction though confirmed to those interested that they worked for a good institution that was unfortunately infiltrated by a serial killer. That served well enough to make those people feel good that they didn’t peak behind the curtain to make sure they’d got it right.
You can often see other breakdowns in the system when a wrongful conviction occurs. For instance, Letby was prejudiced not just by the quality of the investigation and evidence, but also by what in the U.S. we call “structural error.” This is a trial failure that inhibits the fundamental fairness of the procedure. In Letby’s trial, the judge made at least two decisions that significantly prejudiced Letby in ways that would have led to a reversal had the trial taken place in the United States. First, the judge excused a juror without replacing that juror with an alternate. Therefore, her case was submitted to an eleven-person jury. But more importantly, the judge also allowed a conviction by supermajority, rather than by unanimous agreement. She was convicted of fourteen crimes, but only three of those were by the full jury, which was not itself a full jury but only had eleven people, rather than the twelve normally required. The remaining eleven convictions were ten-to-one verdicts. In the U.S., that would have meant she had not been found guilty of those eleven crimes.
These kinds of failures do not only happen in cases where the defendant is in fact innocent. But they make it much more likely that an innocent person will be convicted. Combined with the extremely low quality of the evidence, and the fact that the jury deliberated for two weeks before the twelfth juror dropped out and the rest were told they didn’t need unanimous agreement, this all amounted to an abdication of the system’s duty to ensure safeguards for an accused person. But that failure made doctors believe that they weren’t complicit, it made the police feel like they solved a problem, and it made a nation believe that their healthcare system was running better than it really was. The system failed, long live the system.