According to the Innocence Project’s 2021 report titled “How Racial Bias Contributes to Wrongful Conviction,” two-thirds of the Innocence Project’s exonerees are Black, Indigenous, and People of Color (BIPOC) with 58% being Black. The same report states Black people account for nearly 50% of all exonerees in the country. According to the Death Penalty Information Center, since 1973, over 185 people have been exonerated from death row–100 of them are Black. At the Montana Innocence Project, Black people make up 4% of applicants for legal services but only 0.6% of Montana’s population. It is evident that innocent BIPOC and especially innocent Black people are more likely to be wrongfully convicted. We see these disturbing statistics because racism is baked into every stage of the criminal conviction process from suspect development to post-conviction relief.
Suspect development and charging
When a crime occurs, law enforcement is tasked with identifying who should be held accountable. Cognitive bias often plays a role in the wrong person becoming a suspect. Cognitive biases are “inadvertent mental tendencies that can impact perception, memory, reasoning, and behavior,” according to the Innocence Project’s Research Manager, Vanessa Meterko. In June 2021, the Innocence Project’s science and research team reviewed existing data on how cognitive biases impact criminal case evaluations. They found that laypeople and law enforcement professionals alike are vulnerable to these “mental shortcuts.”
Confirmation bias is a common one in wrongful convictions. It occurs when a person selectively interprets information in a way that supports their existing beliefs or expectations. Meterko explains confirmation bias as occurring in criminal cases “when initial impressions become firm conclusions based on selective information and without a critical evaluation of all the evidence.” Put simply: if someone holds a belief that Black people are more likely to commit crimes, then confirmation bias may lead them to only consider evidence that would implicate a Black suspect.
Confirmation bias played a role in the wrongful conviction of Levon Brooks in Mississippi in 1992. He was wrongfully convicted of assaulting and killing his partner’s 3-year-old daughter. That same year in the same county, another Black man, Kennedy Brewer, was wrongfully convicted for assaulting and killing his partner’s 3-year-old daughter as well. Law enforcement ignored the obvious similarities in these crimes that pointed to a serial attacker and instead relied on biases informed by racism. Using DNA testing, the Innocence Project exonerated Levon and Kennedy and identified the actual perpetrator who committed both of the crimes. The real perpetrator had been a person of interest in the original investigations. Had law enforcement looked outside of their biases, not only would they have avoided wrongful convictions but they could have prevented the second crime.
It should not be ignored that both explicit and implicit racism is part of cognitive biases like confirmation bias. The discussion about cognitive bias is purposeful in showing how the brain acts on racism and processes information about a crime in the context of racist beliefs. And it is an important discussion to have because research shows racial disparity in suspect development carries over to the charging process. The Sentencing Project reports that prosecutors are more likely to charge Black people especially for crimes carrying lengthy sentences and charges based on habitual offender laws.
The Innocence Project’s research reviewed 30 social science research papers–18 of them were based on police participants or an examination of police documents. Anecdotally, it is no secret that racism is often involved in suspect development, but this research proves police officers are experiencing these “mental shortcuts” when selecting who should be charged with crimes. Six of the studies evaluated intervention strategies with varying success. One of the promising approaches asked police to make an argument for the innocence of their selected suspect. Another asked officers to use the evidence pointing to the guilt of a suspect to support different hypotheses. Ultimately, the research review encourages more studies about the efficacy of intervention strategies followed by policy advocacy efforts to reduce cognitive bias in suspect development.
Plea bargaining and trials
After a suspect is identified and charged, the next step is plea bargaining or a trial. Systemic racism plague these processes as well. Plea bargaining encourages people to plead guilty to crimes they did not commit out of fear that they will not succeed at trial and receive a lengthy prison sentence. This is a rational fear according to a U.S. Department of Justice study that found defendants who take their chances at trial and lose receive harsher sentences.
Innocent Black defendants are more likely to be faced with a plea deal because their charges are more likely to stick. A study out of Loyola Law School found that White defendants facing misdemeanor charges are 74% more likely than Black defendants to have charges carrying potential prison time dropped, dismissed, or reduced. And White defendants with no criminal history are 25% more likely to have charges reduced than Black defendants who also have no criminal history.
Plea bargaining led to the wrongful conviction of Marcellius Bradford for the 1986 rape and murder of a medical student in Chicago. After prosecutors threatened him with a life sentence, he pled guilty and testified against his co-defendants in exchange for a 12-year sentence. DNA testing identified the actual perpetrator, and he and his co-defendants were freed.
Anthony Gray was also coerced into pleading guilty. In 1981, police officers told Anthony, who sufferers from a mental disability, that two other men implicated him in a rape and murder. The conviction came under scrutiny when a man arrested for burglary knew unpublicized details about the crime. DNA testing freed Gray after he served seven years.
When innocent BIPOC and especially innocent Black people do not plead guilty, their chances at trial are worse due to barriers like discrimination from all-White juries or mostly-White juries, cross-racial witness misidentification, the presumption of guilt based on racist stereotypes about criminality, biased policing tools and algorithms, bias-motivated prosecuting, and more. These realities explain why the vast majority of exonerees belong to minoritized racial groups and why nearly half of all exonerees are Black.
Sentencing and post-conviction relief
Racism systematically exists in every stage of a criminal case–even after the conviction. According to the ACLU’s Written Submission on Racial Disparities in Sentencing, Black defendants in state and federal courts face significantly greater odds of receiving incarceration sentences than similarly situated White defendants and receive longer sentences in many jurisdictions. Racial disparity in sentencing increases with the severity of the sentence; the disproportionate representation of Black defendants who receive life without the possibility of parole sentences is larger than parole-eligible life sentences. Race is also a determinant factor in which homicide cases receive death sentences.
Racism continues to be a barrier even into the exoneration and post-exoneration efforts, according to the National Registry of Exonerations. On average, it takes 10.7 years to exonerate an innocent Black person compared to 7.4 years for an innocent White person. And, on average, Black exonerees receive $42,000 less than White exonerees in damages from civil lawsuits.
A recent case in Oklahoma demonstrates how difficult remedies are to access for innocent Black people even when there is worldwide support for their case. Julius Jones was sentenced to death row when he was just 19-years-old. He was wrongfully convicted for a 1999 murder in Oklahoma based on witness misidentification and incentivized false testimony. His co-defendant, who better fit the eyewitness description and who later admitted to several people that he committed the murder, received only 15 years in exchange for testifying against Julius. Eleven of the 12 jurors were White. One juror, referring to Julius as the n-word, suggested that they should take him behind the courthouse and kill him. One-third of Julius’ prosecutor’s capital cases have been overturned based on prosecutorial misconduct. Oklahoma’s governor granted Julius life without parole hours before his scheduled execution date on November 18, 2021. This decision came only after the state’s board of pardons and parole recommended his sentence be commuted twice and more than 6.3 million people signed a petition advocating for his innocence.
When an innocent Black person is accused of a crime, they face countless barriers on top of having to prove their innocence. It is important to understand how systemic racism plays a role in wrongful convictions from the moment an accusation is made to the moment an exoneration is achieved. In doing so, we can more fully understand how wrongful convictions happen and where remediation must occur.