The government considers those innocent in prison as collateral damage. They are simply the cost of enforcing law and order.
This article was orignally written as a letter to Playboy Magazine in Febuary 2000.
I served my country honorably from 1969 to 1972, and received an honorable discharge from the U.S. Army. From July 1970 to July 1971, I served with the 101st Airborne Division in Northern I Corps of Vietnam. Thirty years later I sit in a prison cell, sentenced to four consecutive life sentences for sex offenses I not only did not commit, but can prove I did not commit. Thirty years later, I have found out that what I was told from the time I was a small child about my country is a lie.

A friend of mine in here is in the same situation as I am. His sister said something on the telephone to him last week that summed up the cause for all the feelings of anger that I struggle with each day. She said the public believes the courts of this nation search every case for error and diligently protect the rights of the accused and convicted. She said the public just doesn?t know what actually happens in the courts anymore is exactly the opposite. At this point I generally face raised eyebrow, and the "all of them say they are innocent" attitude from the free world. In order for you to understand what I am claiming, and why, I want to expose some myths and disinformation.

First, all prisoners do not claim to be innocent. 93% entered a plea of guilty to their crimes and are simply doing their time. Since I have been fighting my case I have become one of the infamous jailhouse lawyers that are slandered by the government. I hear their stories, I read the transcripts of their trials, I see the evidence that was not placed into the record of their trials. Few ever claim they are innocent of their crimes, although many claim they were overcharged and are convicted of more serious crimes and sentenced to longer terms than the crime actually committed warrants by law. Yes, they complain about that, and they appeal, and they fight in the courts concerning what they consider as excessive sentences. If you were guilty of shoplifting and sentenced for robbery, you would complain also.

But those are not the kind of cases that I accept and try to help with. The kind of cases I take are men and women, just like you, who have committed NO crime at all, but were still tried and convicted by a jury of their peers, and sentenced, in some cases like me, to spend the rest of their life in prison.

The U.S. Department of Justice, Bureau of Justice Statistics, acknowledges that 5% of all prisoners in the United States are innocent. These men and women are the collateral damage of the War on Crime that started during the Reagan administration and continues today. In war, when a factory is bombed to hinder the production capacity of the enemy, some civilians and non-combatants almost always die. The military calls this collateral damage. Unfortunately, because it is impossible to bring the dead back to life, that damage is not reversible, in a war, and is simply accepted as the cost of prosecuting the war.

But collateral damage in a War on Crime is reversible. The wrongly convicted can be given their freedom and compensated for the time they were imprisoned for crimes they did not commit . . . or can they?

The recent focus and debate on innocent people in prison has two serious flaws. First, it concentrates only on persons facing the death penalty. Second, it focuses only on persons who can prove their innocence through DNA testing that was not available at the time of their convictions.

Presently there are two acts pending before Congress concerning innocent prisoners. One of the two is seriously flawed. That act, sponsored by Senator Orrin Hatch, recognizes DNA evidence as proof of innocence only when the prisoner's identity was in issue at the trial. In other words, if you were falsely accused of rape by a stepdaughter, or someone who knew you, regardless of whether or not DNA evidence now proves that your accuser lied, and you are innocent, you will still remain in prison for the rest of your life.

Why is any new legislation needed some people may ask? It is because there is presently NO federal court, no available action, no possible filing, in this nation, where a person in prison who can prove they are innocent can receive relief and be released from prison.

In 1993 the U.S. Supreme Court decided in a case called Herrera v. Collins that a freestanding claim of actual innocence was not a cognizable or valid claim in a Petition for Writ of Habeas Corpus. Further, in 1996, the same Senator Orrin Hatch, along with Senator Trent Lott, sponsored a bill called the Anti-Terrorism and Effective Death Penalty Act. This act amended the Habeas Corpus statutes in many ways. It placed a one-year time limit on the filing of the writ. This was done at a time when all lawyers, such as Hatch and Lott, knew that the average time a man who could prove his innocence spent in prison was 9 years before he could either obtain his release, or obtain the proof he needed to obtain a release. A further provision was enacted that prohibits any prisoner from raising the same claims in a second petition that were raised in the first petition. Consider that Congress is presumed to also know the state of the law, and the decisions of the U.S. Supreme Court at the time they pass any legislation, and are presumed to have taken that law into account in passing the new legislation.

Another line of cases from the U.S. Supreme Court concerning habeas petitions began in 1986 with a case called Murray v. Carrier, and was refined up to a case decided in 1995 called Schlup v. Delo. These cases hold that proof of innocence can only be used to overcome errors made in State courts that would normally prevent a federal court from hearing them under the Procedural Default Doctrine.

So, as of today any prisoner who has absolute proof of their innocence has no federal forum in which that claim can be heard. They have no avenue they can walk down and obtain their freedom.

Critics of such thinking are quick to point to the power of the Governor's of the States to grant Executive Pardons, or Clemency. But the reality of this is that in today's political climate it is political suicide for any Governor to do so. Remember Willie Horton? Any governor who grants a pardon is sure to hear that name in the next election he faces. Besides, as stated by the dissent in Herrera v. Collins, the vindication of constitutional rights has never been relegated to the unappealable discretion of the Executive branch of the government, and such a relegation is not sufficient protection of the rights of the truly innocent.

Death penalty cases have been reversed at a rate of 68%. What do persons facing the death penalty get in the way of protection from the law? Two lawyers at trial, plus investigative money and money for expert witnesses with little hassle. A lawyer on appeal. A lawyer to take the case to the State Supreme Court. A lawyer appointed to any collateral post-conviction proceedings in the State courts. A lawyer appointed for any and all federal writs of habeas corpus, and all appeals from those writs. All of these lawyers must meet certain standards of experience and must be "death" qualified. Meaning, they are experienced criminal defense lawyers.

What do non-death penalty prisoners get, even when facing life in prison? They get one lawyer at trial and one lawyer on their first appeal . . . and that's it! They have to fight for any money for investigation or expert witnesses. The lawyer that is assigned to their cases frequently has no experience in criminal trials or appeals, or very little experience. These lawyers seldom ever have any experience with a federal writ of Habeas Corpus. As a result, few of these attorneys correctly raise the errors occurring in the trials in the State courts so that they can be addressed in federal courts. The Bureau of Justice Statistics finds in a study conducted that the vast majority of non-death penalty prisoners who file for a writ of Habeas Corpus are not in compliance with the Exhaustion Doctrine and are procedurally defaulted because these attorneys did not do their job correctly in the State courts, or the prisoner erred in some manner when they were forced to file their own appeals to the highest State courts -which is also a requirement of the Exhaustion Doctrine. Unable to have the errors heard on the merits in federal court, convictions that were obtained in violation of the Constitution of the United States are allowed to go uncorrected.

As for those who can prove their innocence, the federal courts, because of the decision in Herrera v. Collins, refuse to even grant motions for new evidence to be admitted into the record. So when these case decisions are reviewed, or published, no mention of the proof of innocence appears on the record of the proceedings. I know. That is what the courts to review my case are doing to me.

©2002-2004 James Love. All Rights Reserved.

E-Mail Jim
Prisoners do not have access to computers.
All E-mail goes to the IIAO and is forwarded to the prisoner.

About IIAO | Prisoner News | How to Help | Articles | Letters | FAQ | Links | Contact Us

Back to Articles    Love Case

Back to IIAO Main