[In Kansas v. Marsh, Scalia] concluded that “The rate at which innocent people are convicted of felonies is less than three-hundredths of 1 percent – .027 percent, to be exact”. Scalia sleeps well knowing our system works so brilliantly. The problem, of course is that .027 percent is a hoax, and . . . I [am] struck once again that a justice generally considered to be so bright could get something this important so fundamentally wrong. But one need only look at the study Scalia cites (by Joshua Marquis, a stalwart of the prosecutorial lobby) to understand the error of his ways.
Marquis came up with the number that Scalia adopted much like a toddler solving a problem in a kindergarten math workbook: He took the total number of exonerations, (north of 200 now) picked a gratuitous multiplier (10 purely for rhetorical purposes), and then divided by 15 million—the total number of convictions during the period of years he considered. . . . As I’ve previously pointed out, here’s why that’s a ludicrous methodology.
So how should one “do the math?” Another colleague of mine, Michael Risinger, was recently cited in Justice Stevens’ concurrence in Baze v. Rees for his work on the issue.