Why Is It So Hard for the Innocent to Be Freed From Prison?

The Innocence Project
Elvis Brooks, 62, was exonerated with help from the Innocence Project New Orleans after being wrongfully incarcerated for nearly 40 years for a murder and armed robbery he didn't commit. William Widmer for The Washington Post via Getty Images

In the United States, a person accused of a crime is innocent until proven guilty. This is one of the guiding legal principles of the U.S. criminal justice system. The flip side of the presumption of innocence is that once a person is found guilty by a jury, the burden of proof to overturn that conviction falls completely on them — and it is extremely difficult. It's so difficult that even if an attorney discovers overwhelming exculpatory evidence, that still might not be enough to garner their release.

That means, for a wrongfully convicted person, the uphill legal battle toward exoneration might prove impossible. Netflix series like "Making a Murderer" or podcasts like "Serial" demonstrate just how difficult it can be to even get a new trial. That's where the work and legal expertise of organizations like the Innocence Project become so important. These organizations are dedicated to providing free legal services to innocent people behind bars so they have a fighting chance of gaining their freedom.


In 1992, the Innocence Project was founded in New York City to exonerate the wrongfully convicted through DNA testing, and the nonprofit organization works to reform the criminal justice system, according to its website. By 2004, more organizations formed and began meeting at an annual conference. The association shifted to a "loosely affiliated network" with 15 initial members and an executive board the following year. Today, the Innocence Network includes 67 member organizations around the world — 55 of which are located in the United States, mostly housed in law schools.

The organizations provide pro bono (free) legal services to people who have been convicted of crimes and are seeking to prove their innocence. Additionally, these organizations work to "redress the causes of wrongful convictions" and make improvements to the way the criminal justice system functions.


DNA Evidence and Already Convicted Defendants

You might think that if new DNA evidence is found in a case, even after a person is convicted, it's automatically tested to be sure the right person is behind bars. But that's not the case at all. When someone who is already convicted of a crime wants to have new DNA tested, they must request permission from the prosecutor, explains Keith Findley, associate professor, University of Wisconsin Law School and former co-director of the Wisconsin Innocence Project.

If the prosecutor won't agree, the defendant must file a motion to have it tested, and in that case, it must fit certain requirements of the state's statute. That means questions like "would favorable DNA results create a reasonable probability that the defendant would not have been convicted at their original trial?" must be answered.


However, because the defendant is already convicted and in prison, they no longer have the right to a court-appointed attorney. So any incarcerated person trying to prove their innocence must pay for an attorney to file that motion or get help from an organization like the Innocence Project.

If and when DNA gets tested, it doesn't always immediately exonerate the innocent even if it's in their favor. Obtaining exoneration is a lengthy two-step process, according to Vanessa Potkin, director post-conviction litigation at the Innocence Project.

  1. First, the original conviction must be vacated if DNA or other evidence comes back in favor of the defendant. That means the judge sets aside the original guilty verdict.
  2. Then the defendant returns to pre-trial status, so it's as if they had never been tried and the original accusation remains.

For the wrongfully accused to be completely exonerated, either the district attorney or the court has to dismiss that indictment altogether. Usually, that is the result when there is new evidence of their innocence.

"In rare occasions, clients are brought to another trial and officially vindicated by a jury who acquits them," Potkin says. This is what happened in the case of Anthony Wright, who was re-tried after DNA testing in 2013 excluded him and implicated someone else for the 1991 rape and murder he was convicted for in 1993. A new 11-day trial in 2016 found Wright "not guilty" on all changes; the jury deliberated for less than an hour.

It took three years between Wright's DNA results and the new trial, which seems like a long time to wait, but it is not extensive in these types of cases. An average wrongful conviction case takes about seven years, according to Potkin.

"It's relatively easy to be wrongfully convicted and extraordinarily difficult to be exonerated from a wrongful conviction," she says.

The Innocence Project
(From left) Anthony Wright, actor Ryan Phillippe and Innocence Project attorney Nina Morrison attend a benefit for the Innocence Project in New York City. Wright was wrongfully convicted in 1993 of rape and murder.
Daniel Zuchnik/Getty Images


Making a Deal With the Devil

Other wrongfully convicted don't have time to wait for a new trial. Take the case of Elvis Brooks. Brooks was sentenced to life in prison in 1977 when he was just a teenager for murder and armed robbery of a bar in New Orleans. The conviction was based only on the eyewitness testimony of three white strangers who had been inside.

But there was other evidence: fingerprints left on two beer cans on the bar by the real perpetrators. This evidence was suppressed by the prosecutors who convicted him; it was never provided to Brooks or his attorneys.


When the Innocence Project New Orleans learned of the fingerprint evidence, they filed an application for post-conviction relief in January 2019 alleging Brady violations, which means the government failed to disclose evidence favorable to the accused. The state objected, but the Orleans Parish district attorney's office gave Brooks two choices: Plead guilty to the lesser offenses of manslaughter and three counts of armed robbery and be immediately freed, or remain in prison awaiting a new trial that could take years. Brooks, who was 62 at the time, chose the plea and was released.

Many of the exonerated accept these "deals with the devil" just to be freed, but in exchange they can never receive compensation from the state or file civil suits for wrongful convictions. Some plea deals also protect the prosecutors from disciplinary action, according to The Washington Post. And in the eyes of the law, Brooks is still guilty of crimes he adamantly denies committing.

"Elvis Brooks was wrongfully convicted and it is wonderful that he is being reunited with his family after 42 years," Charell Arnold, one of Brooks' attorneys at Innocence Project New Orleans, said in a statement. "Mr. Brooks never sought a plea agreement. It is deeply unfair that an innocent man would be forced to choose between entering a plea to secure his immediate freedom and waiting years more in prison to prove his innocence through litigation. This situation is particularly unfair given that the State has known about the new evidence presented in this case since 1977."

Both Brooks and Wright have told the lawyers at the Innocence Projects that worked with them that they are the fortunate ones. "People have been so kind and so warm toward me — so gracious toward me. I'm grateful to all those people. ... Even on the street, wherever I go, people hug me or they want to shake my hand," Wright told the Innocence Project. "It's so humbling to me because I'm no different from anybody else. When I tell people that I'm the luckiest guy in the world, they look at me like, 'Yeah, right,' and they laugh. But people don't have an idea, man. I am the luckiest man in the world, and not just for one reason, but for a whole lot of reasons."

And unlike Brooks, who can't seek compensation for his wrongful incarceration, some exonerees can receive financial reimbursement and services to help them adjust to a life of freedom. Whether they are entitled to a financial award and how much varies by state. But what none of them can ever get back are the years of missing out on their lives and those of family and friends.