When wrongful convictions affect blacks more than whites, can we call it a justice system?

By Scott Martelle

March 7, 2017 10:15 AM PT

Racial disparities have long been evident in the U.S. criminal justice system, but a new report drilling into statistics on wrongful convictions points up exactly how nefarious the problem is. African Americans are much more likely to be wrongfully convicted of a murder, sexual assault or drug offense than whites.

The report, by the National Registry of Exonerations, found that “innocent black people are about seven times more likely to be convicted of murder than innocent white people,” and thus also account for a disproportionate share of the growing number of exonerations. African Americans who were convicted and then exonerated of murder charges also spent four years longer on death row than wrongfully convicted whites (and three years longer for those sentenced to prison).

According to the report, African Americans convicted of murder “are about 50% more likely to be innocent than other convicted murderers,” and that such wrongful convictions, even when later corrected, expands the impact of violence on African American communities.

“A major cause of the high number of black murder exonerations is the high homicide rate in the black community — a tragedy that kills many African Americans and sends many others to prison,” says the report, written by Samuel R. Gross, a University of Michigan law professor, and registry researchers Maurice Possley and Klara Stephens. “Innocent defendants who are falsely convicted and exonerated do not contribute to this high homicide rate. They — like the families of victims who are killed — are deeply harmed by murders committed by others.”

Bias in the system becomes clear when looking at the races of the arrested suspects as well as the victims. Blacks are more likely to be wrongfully convicted of murder when the victim is white: “Only about 15% of murders by African Americans have white victims, but 31% of innocent African American murder exonerees were convicted of killing white people.”

Chillingly, black prisoners later exonerated of the crimes for which they were convicted were 22% more likely to have been targeted by police misconduct, a function of everything from malevolent individual racism by law enforcement and prosecutors to institutional discrimination.

Although African Americans convicted of sexual assault are more than three times likely to be innocent than white convicts, the major cause isn’t official misconduct but “the high danger of mistaken eyewitness identification by white victims in violent crimes with black assailants.”

In a sense, the study affirms what most people already know: Failings of the criminal justice system disproportionately affect African Americans. The solutions, though, aren’t so clear. Programs aimed at helping law enforcement and court officials recognize their own implicit bias are a step, and giving less credence to eyewitness testimony (whose veracity is shakier than most people think) at trial would help.

More judicious use of police patrols would also help. Although blacks and whites use illegal drugs at about the same rate, black users are five times more likely to go to prison for it than whites “and judging from exonerations, innocent black people are about 12 times more likely to be convicted of drug crimes than innocent white people.”

Why? Police enforce drug laws far more vigorously in predominately black neighborhoods than in white, which means black people are more likely to be stopped and searched, increasing both the overall arrest rate and the wrongful conviction rate.

When people are wrongfully convicted of murder, a real murderer goes free, and the pain of the crime invests in yet another family.

If there’s any good news in the registry’s findings, it comes in a second report also released today noting that exonerations reached a record 166 cases last year. So the truth is being rooted out more often, but only for a fraction of the wrongful convictions that have occurred. Which makes you wonder where exactly the justice is to be found in the criminal justice system.

There’s more at stake here than the already bad-enough theft of years of freedom from the wrongfully convicted. A study published three years ago in Proceedings of the National Academy of Science found that, conservatively, about 4% of people on death rows were likely wrongfully convicted.

There currently are about 2,900 people on death rows around the country, of whom; under that formula, about 120 are likely to have been wrongfully convicted. In California, about 30 of the 749 current death row inmates, using that formula, were likely wrongfully convicted.

This isn’t to deflect or ignore the pain and suffering of the victims of crimes, and their families. But when people are wrongfully convicted of murder, a real murderer goes free, and the pain of the crime invests in yet another family — that of the person falsely convicted.

So how does this happen? The Death Penalty Information Center analyzed both its own exoneration count and the one maintained by the registry and agreed with the registry conclusion that that official misconduct was the primary cause for people being sentenced to death for murders they did not commit.

“Our data shows that police or prosecutorial misconduct has been the primary cause of 16 of the last 18 death-row exonerations (88.9%),” said Death Penalty Information Center Executive Director Robert Dunham. “We also found that in 18 of the last 25 misconduct-related death-row exonerations (72.0%), the wrongly capitally prosecuted defendant was black.”

What we can’t know is how many innocent people have been put to death in the name of justice.

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