Black, Indigenous, and People of Color (BIPOC) are disproportionately present in the criminal justice system. They are arrested more, and they are incarcerated more. BIPOC are also disproportionately present in the population of people who have been wrongfully convicted. In fact, BIPOC make up 70 percent of those proven innocent through DNA testing. Black people specifically represent 47 percent of those found wrongfully convicted but only 13 percent of the nation’s population. There are numerous social problems that cause these staggering statistics; some are explored below.
“Implicit bias refers to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner,” according to Ohio State University’s Kirwan Institute for the Study of Race and Ethnicity. “These biases, which encompass both favorable and unfavorable assessments, are activated involuntarily and without an individual’s awareness or intentional control.”
You may consciously hold biases about certain groups (these are explicit biases), but because they are conscious, you are easily able to withhold them if you choose to. Implicit biases are sometimes so ingrained in your subconscious that you don’t even know you have them, and more dangerously, you don’t know when you are acting on them.
Implicit biases can be so strong that, in some instances, you can have them against a group that you belong to. Jacob Elder, a second-year law student at the University of Montana Alexander Blewett III School of Law, experienced this in high school. Elder is a Black man who was raised in a White family in Helena, Montana. Growing up, Elder watched shows like “Cops” that ingrained the image of Black men as violent criminals in his mind. Living in a predominantly White town, these stereotypes were never challenged. When his family took a trip to South Carolina and went to a grocery store in a predominately Black community, Elder remembers feeling scared.
“As a Black kid in high school, I was terrified,” Elder said. “I thought those guys were going to rob me. I thought they were going to do something. Years after that, I got to thinking about why I was so terrified. The only answer I could come up with was the fact that Black people being portrayed in the media as thugs and as criminals.”
Everyone has implicit biases. Everyone includes those who make decisions about someone’s innocence—people who make criminal allegations, police officers, judges, prosecutors, expert witnesses, and juries.
Some police officers hold negative biases about BIPOC. While present in policing as a whole, these biases are most extremely documented in the context of police brutality. If the countless videos of police officers killing BIPOC does not convince you of this, here are some statistics:
Unarmed Black people are 3.5 times more likely to be shot by police. Black people are more likely than White people to be handcuffed without arrest, pepper-sprayed, and pushed to the ground by an officer. Black men are 2.5 times more likely to be killed by police than White men. Indigenous people are killed in law enforcement interactions at a higher rate than any other race or ethnicity—the mortality rate is 12 percent higher than that of Black people and three times higher than that of White people. These statistics do not exist because BIPOC people commit more crime. In Oakland, California, for example, Black men are four times more likely than White men to be searched during a traffic stop, but the police are no more likely to recover contraband from Black suspects.
The stereotypes about BIPOC regarding criminality and violence are perpetuated by law enforcement every day. These stereotypes inform violence against BIPOC at the hands of police officers, and these stereotypes make wrongfully convicting a BIPOC possible. For example, it is easy to convince a jury that a BIPOC committed a violent crime when police officers—whom many people defer to—consistently treat BIPOC as ultra-violent predators. When biases go unchecked at any stage of the criminal justice system, it can promote inequality at any stage of the criminal justice system—including the courtroom.
Prosecutors are tasked with holding people who commit crimes accountable. But some prosecutors are so heavily focused on getting convictions that they overlook justice and allow their biases to takeover—BIPOC suffer the consequences of bias-motivated prosecution most.
“While racial disparity in case outcomes is often attributed to law enforcement practices or judicial decision making, the role of prosecutors is overlooked,” according to the Vera Institute of Justice. “In fact, prosecutors have wide discretionary power in case processing decisions—from initial screening, charging, bail, and pretrial recommendations, to diversion, plea bargaining, and sentencing.
When a prosecutor implicitly or explicitly holds a bias about BIPOC, they may be more easily convinced of their guilt. As a result, BIPOC may be over-charged or prosecuted for crimes they did not commit.
The name Emmett Till incites anger and grief in many people, and rightly so. He is the 14-year-old Black boy who was lynched in Chicago in 1955 after Carolyn Bryant, a White woman, claimed he flirted with her.
Bryant recanted her story in the 2017 book “The Blood of Emmett Till” by Timothy B. Tyson, but the result of her uncorroborated claim—the murder of a Black teenager and the severe mutilation of his body—demonstrates the power of false allegations against BIPOC.
Ideally, our society would have learned its lesson by 2020, but baseless claims against BIPOC—namely allegations of Black men perpetrating violence—are still met with presumptions of guilt.
Currently, more than half of all wrongful convictions can be traced back to a false allegation or false testimony. Because Black people represent nearly half of all exonerations, the burden of false allegations falls disproportionately on them. Today, we will explore the prevalence of false allegations of Black men perpetrating violence, but false allegations of all kinds permeate our criminal justice system and cause wrongful convictions regularly.
False allegations—particularly about Black men being rapists—have been reinforced over and over again in our history. While shameful, America embraced the allegation a century ago, and America embraces the allegation today. It is imperative to know that the allegation is rooted in history to fully understand how ingrained it truly is in our society.
“Whether it’s a woman in Michigan falsely claiming that a group of Black men kidnapped, beat and raped her; another woman claiming a Black man kidnapped her 3-year-old and 14-month-old sons (whom she actually killed); the infamous Amanda Knox accusing a Black man of the heinous murder she was initially convicted of; or even a man claiming that Black men stabbed his wife to death (whom he actually killed),” Martenzie Johnson wrote in an article for The Undefeated. “In each instance, the initial story was believable because of the troubling belief that a Black man is capable of such a thing. It’s because we’ve always been told this is what black men do.”
Johnson draws the connection between modern-day attitudes about Black men perpetrating violence to the abhorrent film “The Birth of a Nation.” The film, which was screened at the White House in 1915, celebrates the Ku Klux Klan as heroes after a White woman jumps off a cliff to avoid the risk of being raped by a Black man.
“The Birth of a Nation” is a necessary part of American history to discuss because it systematized the idea that Black men are violent rapists. Again, it was screened at the White House for a viewing by our country’s leaders. Although that was over 100 years ago, the film’s message is still ingrained in our society and in our justice system. In fact, we embrace the film’s message every time we meet false allegations with unwavering support for the accuser and extreme animosity for the accused before there is a guilty verdict. It is because of this that people like Carolyn Bryant are able to lie with so much confidence; they know people will believe them if they point the finger at a Black man because that has been the case for hundreds of years.
About 20 percent of all exonerations based on DNA evidence relied on a police-coerced confession to wrongfully convict. Confessions are coerced in many ways; namely, threatening violence, lengthy sentences, or even the death penalty. And if the suspect is a BIPOC, other factors make them potentially more susceptible.
Stereotypes about BIPOC and criminality increase pressure in an interrogation room. The interrogator may be acting on the stereotype that BIPOC commit more crime, and the person being interrogated may be more nervous and more likely to falsely confess because they know this stereotype exists.
Additionally, BIPOC know their chances at trial are worse because of racism, which may entice a BIPOC to admit to something they did not do and accept a plea deal as opposed to risking a guilty verdict and facing a harsher sentence.
This was the case for Daniel Jackson in 2010. He was being interrogated for murder when one of the detectives, Keith McDaniel, explained that he would lose if the case went to trial.
An appellate Judge in Illinois who overturned McDaniel’s conviction characterized the exchange between McDaniel and Jackson as coercive: “Detective McDaniel … told Jackson that he needs to confess that he killed Clifford Harvey in self-defense because he cannot get a fair trial in Peoria because he is a young, African American male—something he has no power to change. He told him that the judges and the potential jurors have been reading the media coverage of what is going on in the south end, they are sick of it, and they will be working off of stereotypes when he appears before them for trial. Moreover, not only will the stereotypes apply to him, they will also negate the credibility of any witnesses he might call.”
Justice Mary McDade, wrote in her concurrence that she could not imagine a more coercive scenario.
“The bone-chilling subtext in McDaniel’s virtual monologue is that the police could pick up any young African-American male and he could be convicted, even if he does not confess, because the judges and jurors will be driven by media-hyped stereotypes and either will not hear or will not be open to any defense he would put on,” McDade wrote. “It is hard to imagine anything more blatantly coercive than telling a suspect, whether it is true or false, that he needs to confess to killing the victim, claim self-defense and minimize his damages because, even if he is innocent, our system of justice will not work for him because he is young and black and male.”
Coerced confessions impact people of all races and ethnicities, but racism takes an already difficult barrier to overcome and makes it worse. The justice system is so stacked against BIPOC that it can be used as a tactic to coerce confessions.
Cross-Racial Witness Misidentification
In a perfect world, there would be a video recording of all crimes from start to finish that clearly identifies every person involved. Because that almost never happens, prosecutors rely heavily on eyewitness identification to determine whether someone committed a crime. While eyewitness accounts are seemingly the perfect way to tell a jury what happened, they have severe negative implications for minoritized defendants.
The problem with witness identification, for all defendants, is that misidentifying someone is incredibly common, contributing to nearly 75 percent of all exonerations based on DNA evidence. But for BIPOC, the problem is worse. Cross-racial identifications are frequently inaccurate because of own-race bias, the proven difficulty to identify facial characteristics in other races; this is likely why 42 percent of wrongful convictions based on misidentifications are cross-racial misidentifications.
In a study determining whether people are better at accurately identifying those of their own race, White, Black, and Hispanic clerks at a convenience store in El Paso, Texas, were asked to interact with White, Black, and Hispanic customers. Two or three hours later, the clerks were tasked with identifying the customers from a photo lineup. White clerks identified White customers most accurately, Black clerks identified Black customers most accurately, and Hispanic clerks identified Hispanic customers most accurately.
This was the case for Johnny Tall Bear. On October 3, 1991, the body of a transient man known as “Pops” was found on a pile of garbage by an abandoned building in Oklahoma City. Pops had been stabbed and beaten, and the pockets of his pants were inside out.
A man named Floyd Lewis claimed that he witnessed an altercation between three men at that location. Although he was the length of a football field away from the fight, Lewis said “he knew it was Tall Bear.” Tall Bear was convicted of first-degree murder and sentenced to life without the possibility of parole.
When the Innocence Project took on Tall Bear’s case, DNA testing was their first priority. They had the blood stains that were found on Pop’s pockets and on bags that police believe were used to stop Pop’s bleeding tested. A male DNA sample that did not belong to Pops was recovered, but it was not consistent with Tall Bear’s DNA. After serving 26 years, he was freed in 2018 based on this evidence. Tall Bear, a member of the Iowa Tribe, was one of the first indigenous people to be exonerated with DNA evidence.
The Presumption of Guilt
“Late one-night several years ago, I got out of my car on a dark midtown Atlanta street when a man standing fifteen feet away pointed a gun at me and threatened to ‘blow my head off,’ Bryan Stevenson wrote in a 2018 article for Race, Racism and the Law.
Stevenson is the founder and Executive Director of the Equal Justice Initiative. His book “Just Mercy: A Story of Justice and Redemption” was recently made into a major motion picture where he is portrayed by Micheal B. Jordan.
“As a criminal defense attorney, I knew that my survival required careful, strategic thinking. I had to stay calm,” Stevenson wrote. “I’d just returned home from my law office in a car filled with legal papers, but I knew the officer holding the gun had not stopped me because he thought I was a young professional. Since I was a young, bearded black man dressed casually in jeans, most people would not assume I was a lawyer with a Harvard Law School degree. To the officer threatening to shoot me, I looked like someone dangerous and guilty.”
Stevenson’s accolades do not make his life more valuable than any other BIPOC in a similar situation; however, the fact that a Harvard-trained lawyer would receive this treatment exhibits the power of the presumption of guilt.
After an illegal search of his vehicle and a background check turned up nothing that would warrant an arrest, Stevenson was released and told to consider himself lucky.
“While this was said as a taunt, they were right: I was lucky,” Stevenson wrote.
The presumption of innocence is a cornerstone of the American criminal justice system. It means that a defendant is presumed innocent until proven guilty beyond a reasonable doubt. This protection comes from the 5th and 14th amendments, which guarantee due process. According to the presumption of innocence, if you are accused of a crime, it is entirely on the state to prove that you are guilty, and they have to be convincing enough that a reasonable person would have no doubt about your guilt. This is an incredible protection, but it is not afforded to everyone.
As Stevenson explains, following the abolition of legalized slavery, the criminal justice system became the vehicle for White supremacy, and policies designed to continue the subordination of Black people emerged—one of those being the presumption of guilt. Motivated by mass incarceration, our society has decided that being Black or Brown is synonymous with being suspicious or being criminal.
“In America, no child should be born with a presumption of guilt, burdened with expectations of failure and dangerousness because of the color of her or his skin or a parent’s poverty,” Stevenson wrote. “Black people in this nation should be afforded the same protection, safety, and opportunity to thrive as anyone else. But that won’t happen until we look squarely at our history and commit to engaging the past that continues to haunt us.”
We know there is a possibility for racial bias to exist when BIPOC are pursued as defendants: when the accusation is made, during interactions with law enforcement, when the case is being built, etc. The last safeguard before racial bias turns into a wrongful conviction is an impartial jury. The 6th and 14th amendments grant you the right to a speedy, public trial by an impartial jury of your peers, but these rights are often reserved for White people.
It was only 85 years ago that the Supreme Court decided that the systemic exclusion of Black people in juries denies fair trials. This was decided in relation to the wrongful convictions of the Scottsboro Boys.
In 1932, nine Black boys were falsely accused of raping two White women on a train near Scottsboro, Alabama. All of the boys were granted new trials and retried several times based on Constitutional violations. The continual systemic racism, including the fact that the boys were repeatedly wrongfully convicted by all-White juries, was so apparent that support grew for their innocence.
Two Supreme Court decisions were made in regards to the Scottsboro Boys, but it was Norris v. Alabama that cemented the right to a racially diverse jury for non-White defendants.
“Exclusion of all negroes from a grand jury by which a negro is indicted, or from the petit jury by which he is tried for the offense, resulting from systematic and arbitrary exclusion of negroes from the jury lists solely because of their race or color, is a denial of the equal protection of the laws guaranteed to him by the Fourteenth Amendment,” states the court’s opinion. Despite the decisions that came out of the Scottsboro case, all-White juries continue to be a legal barrier for BIPOC.
Patrick Bayer, an economist and social scientist, released the results of his 10-year-long study in 2012, confirming that all-White juries have an immense impact on convictions. The study compared conviction rates from all-White juries with conviction rates from juries with at least one Black member. All-White juries convicted Black defendants 16 percent more often than White defendants, but when at least one Black person was on the jury, conviction rates for Black and White defendants were nearly identical.
Over-Policing and Criminalization of BIPOC
The arrest rate of Black people for disorderly conduct, drug possession, simple assault, theft, vagrancy, and vandalism is at least two times higher than White people. Black drivers are more likely to be pulled over than White drivers; this disparity decreases at night when it is harder to see a driver’s skin color. Black men are more likely to be shot by police in predominantly Black neighborhoods than in less racially segregated neighborhoods. And Black people are 3 1/2 times more likely to be arrested for possession of Cannabis than White people, despite rates of use being similar for both groups.
“Through a White-lens, you’ve got White police officers looking for anything that stands out as different, or possibly suspicious, or out of place,” said Montana Racial Equity Project Executive Director and former police officer, Judith Heilman. “And so, implicitly, if you’ve got somebody Brown, or Black, or Indigenous, in a mostly White space, that person stands out for additional scrutiny whether the officers realize it or not. The more arrests you have of Brown and Black people, and the judges start to see more Brown and Black people coming up before them more and more and more, then it’s a snowball effect.”
Heavier police presence in communities of color speaks to the idea of the criminalization of BIPOC.
“In the eyes of White people who always want to believe police are good and that they’re there to protect and serve…when they see that Black neighborhoods—in areas where there are Black neighborhoods and White neighborhoods—seem so much heavier in a Black neighborhood, they think that there’s more crime there. It’s a vicious cycle,” Heilman said.
The Montana Innocence Project explored these barriers to innocence for BIPOC and more in a June 2020 campaign titled #barriers2innocence. Click here to see the full campaign.