Courtesy Ty Evans

Courtesy Ty Evans

A common perception about prisoners is the well-worn statement, delivered with a roll of the eyes, “They all claim they’re innocent.”

Prisoners’ innocence claims have been around so long that they’ve become a punchline. In The Shawshank Redemption, young Tommy asks Andy DuFresne what he’s in for, and Andy mockingly replies, “Everyone’s innocent in here – – don’t you know that??” And laughter erupts. Innocence claims have become a running joke – on both sides of the prison wall.

Nevertheless, innocent men and women do exist in prison, as proven by the exonerations reported in the media. But even when multiplying these rare exonerations by some indeterminable number, to represent the innocent prisoners who are unable to prove their innocence, the total number of the actually innocent is still very few – not nearly enough to drive the idea that a sizeable number of prisoners can realistically claim innocence.

Then, factor in that 95% of convictions come via a guilty plea. Only 5% challenged the state’s case and went to trial. One then wonders, What’s behind the notion that they “all” claim to be innocent?

Innocence Broadly Defined

Most of the prisoners who claim “innocence” are using a very broad definition of that term. They’re not speaking of “actual innocence” as defined by the U.S. Supreme Court in Herrera v. Collins (1993). That type of innocence applies to a situation where “no reasonable juror” would convict. Instead, the prisoner claiming innocence is really alluding to one of three species of wrongful conviction.

This wrongfully convicted prisoner knows, at a base level, and often correctly, that he should not be in prison – ergo, in his parlance, he is “innocent.” It’s a semantic error more than it is a denial of responsibility.

In my experience – reviewing hundreds of cases as a legal advocate in prison for 26 years – over 99% of innocence claims are better defined as wrongful conviction claims.

Wrongful convictions may be categorized as follows:

  • Overcharged
  • Oversentenced
  • Denied Due Process

The surprising thing is that over 80% of America’s 2.3 million prisoners may be victims of one of these three types of injustice.


The overcharged prisoner is one who is not guilty of the offense for which he was convicted, but guilty of a lesser offense. Overcharging is a form of prosecutorial misconduct, but one allowed by the statutes promulgated by the legislature.

I’ve worked on numerous cases that were overcharged: murder that should have been manslaughter, attempted murder that was really battery, et cetera. The man convicted of murder typically hollers that he’s “innocent” and technically, he’s right.

The problem emanates from the prosecutorial strategy of bringing multiple charges for one act. In a homicide, it’s common for murder, manslaughter and reckless homicide – three distinct felonies – to all be charged simultaneously. The jury is given an instruction on “lesser included offenses,” – instructions that are invariably lengthy, confusing, contradictory and misleading – and asked to sort it out and arrive at one conviction. Unsurprisingly, they often fail to get it right.

The solution lies in barring the prosecution from charging multiple crimes for the same offense. One would think that our Constitutional guarantee against double jeopardy would forbid this tactic, but it doesn’t. But once the state has the evidence and is ready for trial, the correct level of felony should be evident. Pick a charge – ONE charge. Pick the one that fairly assesses culpability. Then, forbid amendment within seven days of the trial date.

Overcharging is already established by canon as an unethical practice. The legislatures need to step in and ban it entirely.


There are two ways to be over-sentenced. One is from a failure to correctly assess aggravating and mitigating circumstances. The second is through a legislatively unfair sentencing scheme.

The first is largely quibbling over unique sets of facts, and won’t be disturbed unless the judge’s sentence was an “abuse of discretion.” The second is pervasive, costs this country billions of dollars, and is responsible for well over a million prisoners who should be free.

We know our sentences are too severe by comparing our nation’s incarceration rate with the rates in other countries. The United States leads the world with 751 prisoners per 100,000 population – roughly 6 times the world rate of 125 per 100,000. England’s rate is 151, Germany’s is 88. (Adam Liptak, U.S. Prison Population Dwarfs That of Other Nations, New York Times, Apr 23, 2008.

Only two conclusions are possible: either Americans are naturally 6 times more criminally prone than the rest of the world or our laws are 6 times more severe than they should be. Since there is no correlation between crime rates and incarceration rates, the rational conclusion is that our sentencing laws are rather arbitrary.

Denied Due Process

For those 5% of prisoners who lost at trial, many complain that their trials were unfair. Quite often, they’re right. Unfortunately, reviewing courts typically classify all defects as “harmless error.”

Prisoners convicted due to ineffective counsel, prosecutorial misconduct, mistaken witnesses, perjury, biased jurors, bogus forensics or investigative errors take umbrage at declarations that those errors lacked harm. There’s a right way and a wrong way to conduct a trial, and every time a court cites “harmless error” it implies that the right way to conduct a trial doesn’t really have to be followed. To them, every trial can be unfair, just not too unfair.

It leaves convicted persons feeling cheated. The only people who believe that American trials are fair are those who have never been plaintiff nor defendant.

Innocence Redefined

When we limit our definition of innocence to only those who did absolutely nothing wrong, we fail to identify the millions of victims of a criminal justice system that is fundamentally dysfunctional. The wrongfully convicted are “innocent” too, just innocent under a broader definition of the word.

Some try to measure the viability of our legal system by weighing only the rare exonerations of the actually innocent as compared to the enormous mass of convictions. Exonerations are never the true measure of systemic injustice, but merely a red flag that this system can fail for anyone, innocent or not. Let’s also remember, Andy DuFresne [Tim Robbin’s character in Shawshank Redemption] was truly innocent – but was never exonerated.

Prisoners don’t all claim they’re innocent; in fact, very few do. But a majority know that they should not be in prison – and they’re right.

Ty Evans in serving a 71-year sentence in Indiana, 40-years for Evans’s attempted murder conviction, enhanced by a 30-year sentence for an habitual offender finding and a one-year sentence for resisting law enforcement conviction, to be served consecutively, for an aggregate sentence of seventy-one years.

Ty Evans #158293

Indiana CF

1 Park Row

Michigan City, IN