How Much Do Wrongful Convictions Cost Government Entities?

At trial, the prosecution presented damning evidence. The medical examiner testified that B.G. was killed by a blunt instrument, there was semen in her vagina, and a mark on her face was from a human bite inflicted around the time of her death. Dr. Richard R. Souviron, an Emory University–trained dentist who had achieved national prominence four years earlier when he testified about bite marks in Ted Bundy’s trial, told the jury “that within a reasonable degree of dental certainty DuBoise had bitten the victim.” Additionally, DuBoise’s one-time cellmate, Claude Butler, testified that DuBoise had confessed to him “that he, his brother and a friend had tried robbing a woman of her purse. When she recognized his friend, they abducted her and later, when he was having sex with her, his friend and brother struck her with boards.” The jury found DuBoise guilty, and although they unanimously recommended a sentence of life imprisonment, the judge overruled them and sentenced him to death. For the next 40 years, he maintained his innocence.

In 2020—37 years after DuBoise’s arrest—attorneys from the Innocence Project and the Innocence Project of Florida, working with the 13th Judicial Circuit’s Conviction Review Unit, conducted DNA testing on B.G.’s sexual assault kit and proved that DuBoise was innocent. The DNA results also identified the actual assailants, two men who committed another murder and sexual assault that summer and a third murder the day that DuBoise was arrested. As DuBoise’s conviction unraveled, it also became clear that police had helped falsify the bite-mark testimony, and the prosecution failed to share key information, including the fact that the jailhouse informant, Butler, was suffering from visual and auditory hallucinations.

DuBoise finally walked out of prison at 55 years old. Notwithstanding the government’s role in securing his wrongful conviction, he was ineligible for compensation under Florida law until, in February 2024, the Tampa City Council voted unanimously to award him $14 million. Earlier this year, DuBoise explained that the settlement “means to me it’s finally over. I’m glad I don’t have to spend any more years of my life pursuing this.” Tragically, his wrongful conviction is not an outlier.

In this country, we are taught that the American adversarial system of justice is uniquely able to accurately identify the guilty and free the innocent. But the 3,528 exonerations that have taken place since 1989 and the wrongful convictions that continue to take place today stand as a disturbing reminder of its very real shortcomings. These profound injustices force a continual reckoning with our legal system’s flaws and play a pivotal role in driving the effort to ensure that it functions as the U.S. Constitution requires. Indeed, wrongful convictions compel an ongoing commitment to improving the accuracy of our system and grappling with the very real costs associated with arresting, prosecuting, and incarcerating innocent people. And make no mistake: wrongful convictions are expensive.

The Causes of Wrongful Convictions

To fully understand the costs of wrongful convictions—and how to prevent them—it is essential to understand how and why wrongful convictions happen in a system that appears to contain so many safeguards. After all, every conviction involves substantial process: a judge or a jury must conclude beyond reasonable doubt that the accused is guilty, or the accused must admit guilt; an appellate court must find no constitutional violation in the trial record; state and federal post-conviction review—which should include evaluation of evidence that was not presented at trial—must fail; and the state’s highest court and the U.S. Supreme Court must deny relief. Very often, convictions depend on detailed confessions. Juries hear compelling testimony from scholarly experts with advanced degrees and/or experienced law enforcement officers who have taken oaths to protect their communities. And eyewitnesses commonly identify the accused as the perpetrator in open court. How, then, do wrongful convictions happen?

Wrongful convictions are almost never the product of a single factor. The table below shows the five factors most commonly observed in recorded exonerations since 1989.

In most wrongful convictions, more than one of these factors is present, and the interactions between them increase the likelihood of a wrongful conviction. For example, a witness who is subjected to coercion by police may make a mistaken identification, which can then be used in an interrogation of an innocent person, which can produce a false confession. Additionally, exonerations are most common in homicide and sexual assault cases, where the severity of the crime often generates a “strong impulse to secure convictions,” even “in cases with weak evidence.” That impulse can, in turn, lead law enforcement and prosecutors to “cut corners [and] jump to conclusions,” leaving potential leads uninvestigated and giving judges and juries an inaccurate picture of the evidence.

Significantly, the numbers above do not account for inadequate representation and racial bias, both of which are pervasive and amplify the risk of wrongful conviction. Although there are no large-scale analyses of the impacts of ineffective assistance of counsel on wrongful convictions, countless wrongful convictions could have been prevented or identified sooner by appropriately trained and resourced counsel. And while Black people make up just 13.6 percent of the U.S. population, nearly 60 percent of the 250-plus people whom the Innocence Project has helped free or exonerate since 1992 are Black—a reflection of the disproportionate rate at which Black people are wrongfully arrested, prosecuted, and incarcerated. This number is consistent with patterns documented by the National Registry of Exonerations (NRE), including their finding that innocent Black people are seven times more likely to be wrongfully convicted of serious crimes than white people. Police investigatory practices that contribute to wrongful convictions—including deception in interrogation, threats to witnesses and the accused, and tainted witness identifications—are also more common in cases involving Black people. Witnesses, too, are susceptible to the effects of racial bias, as cross-racial identifications are particularly unreliable. Simply put, being a person of color and having under-resourced or ineffective defense counsel are major risk factors for wrongful convictions on their own. When those factors overlap with others, the risk of a wrongful conviction is even greater.

The Costs and Consequences of Wrongful Convictions

The costs of wrongful convictions can generally be broken down into three categories: the risk that actual assailants are not apprehended, the financial penalties associated with state-specific compensation statutes and/or civil rights litigation, and the loss of public confidence in the criminal legal system. Each cost may not be present in every wrongful conviction, but, commonly, the costs of wrongful convictions are additive, and the costs of any given wrongful conviction also depend heavily on the reasons for the wrongful conviction, the jurisdiction in which the wrongful conviction occurred, and the nature of post-exoneration representation.

The Risk That Actual Assailants Are Not Apprehended

Those who study wrongful convictions generally classify them as either “wrong-person” wrongful convictions (where a crime has taken place, but the government convicts the wrong person) or “no-crime” wrongful convictions (where no crime has taken place, but the government nevertheless obtains a conviction). Wrong-person cases account for approximately 60 percent of all known wrongful convictions since 1989, and in those cases, post-conviction DNA testing has the power to identify the actual assailant. In a wrong-person case, the actual assailant escapes justice, at least initially, and “the vast majority” of actual assailants commit at least one crime after an innocent person has been wrongfully convicted. By some estimates, wrongful convictions contribute to upwards of 41,000 additional crimes being committed annually in America.

However, prosecutors are often reluctant to charge actual assailants who are identified post-conviction; indeed, approximately half of identified actual assailants were never charged for their crimes. This is sometimes attributable to the fact that the process of exoneration takes, on average, more than two decades, meaning the victim of the crime, essential witnesses to the crime, and the actual assailant are often deceased or otherwise unavailable for prosecution. A reluctance to re-indict also reflects the criminal legal system’s finality bias.

Financial Costs

When wrongfully convicted persons are finally exonerated, they may rightfully seek financial compensation, not only as a means of helping them restart their lives but also because, in the words of Innocence Project client Malcolm Alexander, “[i]t proves to be a full apology.” Unfortunately, fewer than half of exonerees who seek compensation receive it. The process often takes years and, in the case of litigation, requires a civil attorney who collects a significant percentage of the ultimate award. Nevertheless, as of January 2024, the total amount paid by governments to exonerees was almost $4 billion. Most of that money was paid in the last 20 years, and taxpayers are often on the hook for the bill.

Exonerees are compensated almost exclusively through two basic mechanisms. First, in 38 states and the District of Columbia, exonerated people are entitled to compensation by statute. To secure compensation, exonerees are required to prove their innocence either by a preponderance of the evidence or by clear and convincing evidence. Most compensation statutes apply only to exonerations from felony convictions and to exonerees who were incarcerated pursuant to a wrongful conviction. Some statutes are “no-fault,” meaning the exoneree need not prove that the government caused the wrongful conviction, while others prohibit compensation if the exoneree contributed to their conviction by, for example, pleading guilty. All the statutes designate a forum for adjudicating compensation claims; most often, these claims are brought before a state trial court or a state administrative agency. In total, 1,225 exonerees have received $983,767,012 (an average of $803,075 per exoneree) in compensation through such state statutes.

Second, exonerees may bring civil lawsuits against the jurisdiction that wrongfully convicted them. The majority of these suits are brought in federal court under 42 U.S.C. § 1983, which requires proof that a state actor breached a constitutional duty or state law and that the breach caused the wrongful conviction. As a result, recovery in civil litigation is less frequent than under compensation statutes, and a significant majority of civil lawsuits brought by exonerees are resolved through settlements. Even so, when exonerees do receive compensation through civil litigation, the awards are large; the average civil award for a prevailing exoneree is $3,917,404.

Erosion of Public Trust in the Criminal Legal System

The third cost of wrongful convictions, erosion of public trust, is less readily quantifiable but may be the most insidious. Wrongful convictions foster distrust in the criminal legal system, especially in the historically over-policed and under-resourced Black and Latinx communities in which the majority of wrongful convictions have taken place. The fact that government misconduct is most common in cases involving people of color undoubtedly exacerbates such distrust.

Prosecution and imprisonment of the wrong person causes grievous harm to the innocent persons, their family, and their community, and failure to adequately compensate a wrongfully convicted person invites doubt about the accountability and transparency necessary for governmental legitimacy. Wrongful conviction can also foster distrust in the families of the victims of the underlying crime, as does governmental failure to support crime victims and their families after a wrongful conviction.

When a wrongful conviction occurs and the actual assailant commits additional offenses, members of the public—including, most notably, the victims of subsequent offenses—may be less likely to trust law enforcement to protect them from harm. This, in turn, can reduce the public’s willingness to report crimes, partner in crime prevention, or participate in violence reduction efforts. When, in the wake of a wrongful conviction, the government—notwithstanding available evidence—declines to prosecute the true assailant, the entire criminal legal system is delegitimized. What, after all, is the purpose of prosecution and incarceration if not to identify and punish the guilty?

Prudent Governmental Reforms to Reduce the Risk of Wrongful Convictions

There are a multitude of prudential reforms that governments can and should adopt to prevent wrongful convictions. Broadly speaking, these reforms can be grouped into four categories: (1) improving accuracy and transparency in criminal investigations, (2) improving resources for public defense, (3) ending the use of law enforcement tactics known to produce wrongful convictions, and (4) increasing direct accountability for those responsible for wrongful convictions.

Law enforcement must improve both accuracy and transparency. Doing so starts with investigation techniques. To improve the reliability of eyewitness identifications, police departments should adopt science-backed practices for reducing misidentifications. In the context of lineups and photo arrays, some of those reforms include ensuring that officers who administer lineups are blind to the identity of any suspects; lineups are composed of people who match eyewitnesses’ descriptions; witnesses are encouraged to use non-numerical confidence statements (e.g., “I’m quite sure” versus “I’m 90 percent sure”); and witnesses are instructed that a suspect may or may not be present in the lineup. All custodial interrogations should be recorded, and unrecorded confessions should be inadmissible in court. More states should pass laws prohibiting police use of deception during interrogation, especially for young people and other vulnerable populations, to prevent false confessions.

Police departments must also adopt policies that reduce, and ultimately eliminate, arbitrary racial and socioeconomic disparities in the criminal legal system, including in wrongful convictions. This requires addressing policies and practices that promote or facilitate racial profiling in policing, including practices such as stop-and-frisk, gang surveillance that encompasses entire Black and brown communities, and the use of pretextual traffic stops. Police also must reject the use of technologies that bring more innocent Black and brown people under suspicion without contributing to public safety. And outright prejudice must be punished legally and administratively.

Any and all law enforcement use of jailhouse informants must be closely regulated and promptly disclosed to the defense because such witnesses—who know that pending criminal charges can be dropped or reduced in exchange for trial testimony—have an enormous incentive to tell prosecutors what they want to hear, even if it is false. Prosecutors should be required to maintain informant databases that include such details as the informant’s complete criminal history, any prior testimony or offers to testify, benefits promised and provided to the informant, and any other information that could undermine the informant’s reliability or credibility. Similarly, prosecutors should be required to maintain databases of adverse credibility findings made by courts about law enforcement witnesses as well as internal prosecutor office information about officer unreliability in court and during pretrial preparation. Prosecutors must promptly and fully disclose this information to defense teams.

Consistent with their obligations under the ABA Model Rules of Professional Conduct, prosecutors should also adopt open-file policies, which give defense teams ongoing access to prosecution files, to protect against the inadvertent suppression of exculpatory material because “[w]hen prosecutors make the decision as to whether evidence is Brady material, their belief that the defendant is guilty can create a distorting prism through which they tend to view the evidence inaccurately as a red herring or irrelevant.” Furthermore, prosecutors who violate court rules or their own ethical obligations must be held accountable. States should impose limitations on absolute prosecutorial immunity, which shields prosecutors from civil litigation, including in cases of wrongful conviction; create incentives for state bar associations to discipline bad actors, including enforcing punishment for ethical violations by prosecutors; adjust the standards governing court discipline of prosecutors to ensure meaningful accountability; and invest in independent agencies to investigate prosecutorial conduct.

Governments should adopt more rigorous standards for the admission of forensic science, and judges, defense lawyers, prosecutors, and police officers should be required to receive ongoing education to ensure that they are able to identify and exclude forensic evidence that is unreliable, not generally accepted in the field, misleading, or outright false. This includes bite-mark analysis, hair comparisons, tool mark comparisons, shaken baby syndrome diagnosis, and comparative bullet lead analysis, each of which is still used in court today despite substantial questions about reliability and accuracy. Court rules and standards should also permit testimony from experts on topics backed by peer-reviewed research, including false confessions and eyewitness misidentification and memory.

One of the most efficient ways to prevent wrongful convictions is to dramatically increase funding to the systems that provide representation to indigent people charged with crimes. Attorneys appointed to represent indigent people must have reasonable workloads and be provided the compensation and resources necessary to investigate and defend against evidence developed by police departments, crime labs, and prosecutor offices. In the long term, a robust public defense system will reduce or eliminate the likelihood of wrongful conviction as well as the significant downstream costs associated with these injustices.

States should pass legislation giving district attorneys the power to petition the courts to vacate convictions that they deem indefensible. And governments should allocate funding to support the establishment of conviction integrity or conviction review units that follow the principles that make them most effective. Jurisdictions with effective and independent conviction integrity units, such as Dallas County, Texas; Philadelphia County, Pennsylvania; Manhattan, New York; and Wayne County, Michigan, have helped uncover large numbers of wrongful convictions and have contributed to “unprecedented” numbers of DNA and non-DNA exonerations.

Governments must also adopt specific policies to deter the conduct that leads to wrongful convictions. Because absolute and qualified immunity insulates government actors from civil liability, monetary consequences do not disincentivize the misconduct that contributes to wrongful convictions. Specifically, prosecutors, while performing their duties, are absolutely immune from monetary damages, as are witnesses. Police officers, forensic scientists, and members of law enforcement “performing discretionary functions” generally are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Given the significant role that government misconduct plays in wrongful conviction, Congress should make clear that qualified immunity is not a defense to claims brought under section 1983, and more states should pass laws that hold members of law enforcement directly accountable for misconduct that causes wrongful convictions. Similarly, states with Law Enforcement Officers’ Bill of Rights statutes—which give expansive procedural protections to officers facing disciplinary and other investigations that go well beyond the protections afforded civilians facing criminal prosecutions—should repeal them to ensure that officers who engage in misconduct are held accountable.

States must also adopt laws that protect the rights of innocent people. Across the United States, judges and prosecutors are reluctant to reopen cases that were “solved” decades before—even if it means biological evidence goes untested and grievous trial-level errors go uncorrected—out of concern about real or perceived harms to victims, the reputational damage to the criminal legal system, and the cost of reviewing old cases. But ignoring wrongful convictions is far more costly to the criminal legal system than correcting injustices. Thus, states must give convicted people access to post-conviction DNA testing, regardless of their incarceration status and regardless of whether they went to trial or pleaded guilty. States must permit wrongfully convicted people to present new evidence of innocence, including petitions based on changes in the science that was used to convict them. States with strict jurisdictional statutes of limitations should revisit those procedural rules in cases involving new evidence of innocence. And all jurisdictions should mandate the indefinite preservation of biological evidence to ensure that DNA testing is possible in the future.

The causes of wrongful convictions have been and remain manifest, but the consequences are diffuse. Each wrongful conviction costs the government in money, in safety, and in public confidence. Eliminating wrongful convictions entirely would require us to adopt a different criminal legal system. Practically speaking, however, there are dozens of smaller fixes that governments can and should adopt to improve accuracy and efficiency in the administration of justice, and the track records of exonerations in jurisdictions that have adopted some of these fixes prove that positive changes are possible without putting public safety at risk.