The Republican Party, like Sisyphus, is again putting its shoulder to a boulder, hoping to make modest but significant changes in the Electoral College arithmetic by winning perhaps 12 percent of the African-American vote. To this end, they need to hone a rhetoric of skepticism about, and an agenda for reform of, the criminal justice system. They can draw on the thinking of a federal appellate judge nominated by President Ronald Reagan.
In an article that has stirred considerable discussion since it appeared this past summer in The Georgetown Law Journal, Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit provides facts and judgments that should disturb everyone, but especially African-Americans, whose encounters with the criminal justice system are dismayingly frequent and frequently dismaying.
Eyewitness testimony is, Kozinski says, "highly unreliable, especially where the witness and the perpetrator are of different races." Mistaken eyewitnesses figured in 34 percent of wrongful convictions in the database of the National Registry of Exonerations. Fingerprint evidence, too, has "a significant error rate," as does spectrographic voice identification (error rates up to 63 percent) and handwriting identification (error rates average 40 percent). Many defendants have spent years in prison "based on evidence by arson experts who were later shown to be little better than witch doctors." DNA evidence is reliable when properly handled, but is only as good as are the fallible testing labs.
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