The Roman poet Juvenal asked: “Who will guard the guards themselves?” yet his inquiry had nothing to do with security personnel. It’s a philosophical question about how the highest among us in a power structure will be held accountable.
The people monitoring the integrity of the state’s relatively new Conviction Integrity Unit or CIU are the same group of people who caused the wrongful or erroneous convictions in the first place.
Connecticut’s CIU, formed officially in the state’s fiscal year 2022-23 budget, started on July 1, 2021. To date, Nutmeg State citizens are unaware of its work because none of it — including the identities of the professionals doing that work — has been made public.
Ideally, a conviction integrity unit should be a collaboration of interdisciplinary professionals committed to restoring trust and integrity to a system that’s been badly damaged by decades of corruption.
Instead, as it’s currently formed, Connecticut’s CIU is an appendage of the same parties who’ve demonstrated an interest in maintaining criminal convictions.
Establishing a CIU the way Connecticut has — placing it in the Chief State’s Attorney’s Office — may legitimize (as opposed to correct) a system that churns out wrongful convictions.
Until last July, people convicted of crimes in Connecticut had three options to address their convictions: in direct appeal, through petitioning the trial court for a new trial, or filing what’s called a petition for habeas corpus (habeas corpus means “You have the body” in Latin and challenges custody more than convictions, which is why these petitions may address conditions of confinement as well as the legitimacy of court outcomes). Petitions for habeas corpus can be filed in both state and federal courts under very restrictive rules.
When the CIU was added, the state didn’t necessarily expand the ways that someone can vacate an erroneous conviction, some defense attorneys fear.
“The only reason any judges ever [care] about [habeas corpus petitions] at all is because it might be the only means of recourse for someone who’s incarcerated,” said New Haven defense attorney Alexander Taubes.
“But if they think there’s a mistake that was made years ago, that there’s already a mechanism for correcting it…they’re not going to really feel like they need to even look at these habeases at all,” Taubes continued.
It will be hard to measure Taubes prediction since calculating how many habeas petitioners actually succeed in their petitions can be difficult. A 2018 article in the Hartford Courant reported that habeas corpus petitions were “overwhelming” Connecticut courts but were hardly an easy avenue to have one’s conviction vacated. Between 2008 and 2018, petitioners, almost always incarcerated people, filed a total 7,442 habeas actions. Between 1994 and 2018, only 24 prisoners won the petition; that’s a rate of one per year.
To address the possibility that frivolous petitions were appearing in court dockets, the General Assembly passed a law in 2018 to create the Habeas Corpus Task Force. The Task Force could have provided a better sense of what was causing the low rate of success amongst habeas petitioners.
The Task Force accomplished next to nothing for reasons beyond its control. Finding task force members took a while and then the pandemic effectively torpedoed the entire endeavor. Because task force members thought virtual meetings wouldn’t suffice for such serious discussions and Gov. Ned Lamont ordered that state workers not meet in person unless necessary, the Task Force’s work ended before it really began. The cover letter accompanying the Task Force’s 2021 report suggested that the Connecticut General Assembly reauthorize the task force. It hasn’t done so yet.
It’s not unreasonable for judges to assume that the CIU’s will be better at clearing the innocent than habeas courts do; CIU’s do most of the heavy lifting in exonerations. When exonerations achieved by CIU’s are removed from all confirmed, the number goes down threefold. (See p. 300 at 17/70)
Connecticut’s CIU hasn’t cleared anyone yet and it’s not alone. Fifty-three CIUs throughout the country have not produced a single exoneration; thirteen of them just started last year, in 2021.
There’s an epidemic of wrongful convictions out of the New Haven Judicial District from years ago. The Conviction Integrity Unit couldn’t have helped some of them; they were cleared before the unit came into existence.
But in other cases, courts beat the CIU to the punch by vacating convictions and ordering new trials, as is what happened in the case of Adam Carmon last month. Unless they oversee a habeas corpus case, superior court judges aren’t tasked with exonerating people; they have full civil and criminal dockets to handle. Yet, in two recent cases, (1, 2) Superior Court Judge Jon Alander has sought to release innocent prisoners before they’re finally exonerated because the process is taking too long.
Analyzing the CIU’s performance comes with a grain of salt; it’s a state agency whose decisions may cost the state millions. Exonerees can collect compensation in the state of Connecticut. The amount of compensation is indexed to the median, average, or per capita income wage and can range from $49,000 to $131,000 for each year of wrongful incarceration. The state has already paid millions to exonerees before discussion of a CIU even surfaced.
Perhaps Connecticut should take notes from the North Carolina Innocence Inquiry Commission. Created by state statute and thought to be a model for others, the commission is a fact-finding, neutral agency based outside the prosecuting authorities and it can be hardly described as pro-defendant: out of 3317 claims, the Commission has exonerated 15 people to date. But it’s still hard to argue that the staff of the Commission is on the side of the prosecutors.
In Connecticut, the investigators and lawyers checking out claims of innocence work in the same office with lawyers who have defended the convictions in question in habeas proceedings.
It may be too early to investigate the investigators. But the question lingers: when will it be too late?
Bozelko served more than six years at the York Correctional Institution. While she was incarcerated for non-violent crimes that remain on appeal, Bozelko published a book of poetry entitled Up the River: An Anthology (Bleakhouse, 2013).