Skip navigation
The Habeas Citebook: Prosecutorial Misconduct - Header
× You have 2 more free articles available this month. Subscribe today.

Racism and Wrongful Convictions

The meaning of “race” is not clearly defined. Further, perhaps due to a lack of a clear definition of race, the breakdown of statistics by racial groups is not standardized. Most criminal justice statistics list racial group subdivisions of White, Black, and Hispanic. Yet there is no clear definition of what constitutes White or Black, and Hispanic is not a racial group at all, but rather an ethnic group made up of multiple races. Further, this type of designation lumps people of Asian ancestry in with Whites and lists Native Americans as White or Hispanic while ignoring those of mixed racial heritage altogether.

One way to mitigate this problem is to allow people to self-identify their racial identity, but this inevitably leads to totals in excess of 110% as some people identify with more than one racial and/or ethnic group. Given these problems, any statistical study involving race and the criminal justice system must be carefully scrutinized.

“Wrongful conviction” is also subject to differing interpretations. Some would include any conviction that is reversed for reasons other than improperly admitted non-confessional evidence of guilt and for which there was no subsequent conviction. Others insist that the wrongfully convicted consists only of people who were convicted but are “provably innocent of any crime.”

The advent of DNA forensics also has opened up another definition of wrongfully convicted —“those who were subsequently exonerated by DNA evidence.” When comparing information from studies of wrongful convictions, one must be careful to first determine what the authors mean by wrongful conviction.

Another consideration is that the vast majority of wrongful convictions are never proven. Most estimates put the percentage of wrongful convictions at 4%. With about a million felony convictions in the U.S. each year, one would expect there to be around 40,000 exonerations. Yet 2016 saw a record number of exonerations—166. This implies that many thousands of wrongful convictions go undiscovered each year. The reasons for this might be a short sentence, a lack of evidence proving innocence, unproven (or undiscovered) police perjury, or even a mistaken eyewitness, but the fact that so many wrongful convictions are undiscovered leaves open the possibility that those which are proven are not a representative sample of all wrongful convictions. For instance, it is known that DNA exonerations are most common in cases of murder and sexual assault because those are the type of crimes that often generate DNA evidence. Yet, in the vast majority of crimes, no DNA evidence is present, so no DNA exoneration is possible.

Minority Overrepresentation
in Wrongful Convictions

Blacks are overrepresented at everylevel of the criminal justice system but nowhere more so than in the percentage of known wrongful convictions. As of 2016, Blacks, who comprise less than 13% of the population of the U.S., account for 47% of the exonerations listed in the National Registry of Exonerations. They make up 67% of the exonerations proven by DNA evidence. The percentages would be even higher if group exonerations were not excluded from most exoneration databases. Group exonerations involve nearly 100% minorities because the crooked cops who set up the bogus charges that result in group exonerations almost always target minority communities. That is where you find people lacking the political and financial wherewithal to combat corrupt cops and other actors within the criminal justice system.

Of the at least 1,840 people exonerated between 1995 and 2017 in group exonerations, the races of 1,657 are known. Of those, 1,486 (90%) were in group exonerations that overwhelmingly involve Black defendants. The remaining 10% were in group exonerations that overwhelmingly involved Hispanic defendants. The vast majority of the group exonerations were for bogus drug charges.

Group exonerations are excluded from many exoneration databases due to the decision by the keepers of those databases that they should include not the wrongly convicted, but the provably factually innocent. Those same gatekeepers of exoneration statistics believe that group exonerations provide insufficient information to prove innocence. Thus, they skew the information available on wrongful convictions in many ways — including racial composition of exonerees, types of crimes they were convicted of, percentage who pleaded guilty, and reason for wrongful conviction. For instance, most of the people exonerated by DNA evidence were convicted of a sex crime or murder. Most exonerated in group exonerations were convicted of drug offenses. Likewise, most people exonerated by DNA evidence had eyewitness misidentification as the leading cause of their wrongful conviction, but all group exonerees had police perjury as their leading cause. Further, only 6% of DNA exonerees pleaded guilty; whereas, about 80% of the provably factually innocent group exonerees pleaded guilty. [CLN, Sept. 2019, P. l].

Even worse than the exclusion of group exonerations from the databases is the total exclusion of wrongful convictions for misdemeanors. Perhaps this is because misdemeanors are considered too minor to bother with, since they do not result in years or decades of imprisonment. But the effect misdemeanors have on poor people can be devastating. Even brief periods of incarceration in a jail can cause the loss of a job, housing, and child custody. Likewise, a criminal record with a misdemeanor conviction can close future opportunities for housing, education, and employment. What to the moderately affluent is a matter of “paying the fine and getting on with your life” becomes a life-altering experience for those too poor to pay a fine, make bail, or hire an attorney. It can also be the start of a journey that ends in prison.

Misdemeanor-to-Prison Pipeline

As in every other level of the criminal justice system, minorities are overrepresented in misdemeanor courts. The petty-offense machinery often criminalizes completely harmless conduct that disproportionately brands people of color as criminals – reinforcing racial stereotypes already present in the criminal justice system. The consequences of misdemeanor convictions are serious and long-term, including arrests, fines, fees, incarceration, humiliation, and onerous conditions of probation, stigmatization, and a criminal history that may diminish future opportunities for employment, education, housing, and credit. Of course, incarceration can also carry with it the immediate loss of employment, housing, and/or custody of children as well as stress on family relationships that can lead to estrangement or divorce.

Misdemeanors have greater consequences for poor people, and minorities make up a greater percentage of the poor. In most instances, the government does not provide a defense attorney for misdemeanor prosecutions, and the less affluent cannot afford one. They often cannot afford bail. Therefore, when faced with a decision of whether to languish in jail for months or even years awaiting what the criminal justice system considers to be a low-priority trial, poor people charged with misdemeanors often plead guilty just to gain immediate release from jail – even if they know they are not guilty of a crime.

This aspect of the innocent poor pleading guilty was recently highlighted when a newly elected district attorney in Houston, Texas, insisted on having the crime lab test substances the police alleged were drugs even when the person charged with the crime had already pleaded guilty. The crime lab had been so backlogged that people who maintained their innocence but could not afford bail were kept in the county jail for months while those willing to plead guilty were often released the same day they entered their pleas. The testing found 134 people who had pleaded guilty to low-level drug crimes when the items they possessed were not controlled substances. Thus, having committed no crime, they pleaded guilty solely to gain release from jail.

Only a third of the offenses were misdemeanors, showing that the pressure to plead guilty to get out of jail even influences innocent felony defendants. This proof of the coercive effect of jailing people arrested for minor, non-violent crimes led the courts and district attorney to re-evaluate whether bail should be charged in such cases and whether possession of small amounts of marijuana should even be prosecuted.

Unfortunately, other populous counties in Texas have not learned from Harris County’s experience. Travis and Galveston Counties jail 69% of people charged with misdemeanors; Dallas County jails 42% – the least of the 10 most populated Texas counties. 

The over-jailing of misdemeants is racially disproportionate. For instance, in Travis County, 35% of the people booked into jail for misdemeanors are Black, but Blacks make up only around 9% of the county’s population. Many of the people booked into jail were charged with fine-only misdemeanors that do not carry jail time as a possible penalty.

Jailing misdemeanor defendants is costly. In addition to potentially costing the defendants their jobs, housing, or children, it is estimated to have cost the taxpayers in the ten most populated Texas counties $51 million to jail people charged with misdemeanors in 2016.

Even when an innocent misdemeanor criminal defendant is willing to wait in jail for a day in court, there is no assurance of success. Misdemeanor prosecutions are “quick and dirty.” It adjudicates defendants in “speedy, sloppy, disrespectful ways without careful attention to evidence or rules.” The misdemeanor system presumes poor minorities should be treated as criminals and process them in a way that turns this into a self-fulfilling presumption by incarcerating them, providing no counsel or, at most, a harried public defender swamped by an untenable caseload, pressuring them to plead guilty, and accepting flimsy evidence as absolute proof of guilt. In many misdemeanor prosecutions, the only evidence of guilt offered to support jailing and prosecution is the statement of the police officer who made the arrest that the defendant was loitering, jaywalking, vagrant, trespassing, or resisting arrest. Thus, many misdemeanor defendants are convicted solely by “word of cop.”

The racial disparity in misdemeanor arrests is not limited to Texas. According to FBI statistics, in 2015, Blacks comprised 12.6% of the U.S. population but accounted for 26.6% of its misdemeanor arrests. This included 44.7% of the arrests for curfew violations and loitering and 56.4% of the gambling arrests.

In Urbana, Illinois, 91% of the people ticketed for jaywalking between 2007 and 2011 were Black. Only 16% of the city’s residents were Black.

In Jacksonville, Florida, which is 29% Black, Blacks received 55% of the tickets issued to pedestrians. Almost all were issued in the city’s poorest neighborhoods.

In Baltimore, Maryland, the police department was criticized in 2016 for forms for a trespassing arrest containing blank spaces for the arrestee’s name and address but not for gender or race. Those were preprinted on the form as “BLACK MALE.”

Underpolicing While Overpolicing

Studies have shown that police stereotype minority communities as criminal. Therefore, they focus resources on these “criminal communities” and police them more stringently. Thus, three urban Black men standing on a corner discussing a basketball game are subject to being detained and searched by police and possibly charged with an order-maintenance offense such as vagrancy, loitering, disorderly conduct, public intoxication, or resisting arrest, while three suburban White men having a similar discussion at a street corner need not fear police intervention at all. The effect of this overpolicing is that Black communities suffer a higher arrest rate than White communities.

The higher arrest rates in Black communities reinforce the stereotype of Blacks committing crimes at higher rates than Whites. Studies have shown that Blacks do commit some of the less common felony offenses, specifically robbery and murder, at higher rates than Whites. The studies also show that Blacks are arrested at much higher rates for crimes they commit at the same rate as Whites, such as drug possession—especially possession of marijuana. They also show that the higher Black rates of arrest for “contempt of cop” offenses such as disorderly conduct or resisting arrest reflect police discretion, not higher rates of offending. Thus, the skewed misdemeanor arrest rates for Blacks appear to be the product of discriminatory overpolicing, not greater criminality.

Ironically, the very minority neighborhoods that suffer from overpolicing of misdemeanors also suffer from underpolicing of more serious crimes. Perhaps because so many resources are expended overpolicing minor offenses or perhaps because police are too busy arresting and booking misdemeants, studies have shown that, for Black communities, 911 response times are longer, and homicide clearance rates are lower. Thus, community activists find themselves simultaneously protesting overzealous and intrusive misdemeanor policing while supporting an increased police presence and greater resources for the policing of serious offenses.

Another factor driving the overpolicing of Black communities is the police arrest quota system. Some police departments require officers to make a certain number of arrests per shift. Others exalt officers with the highest number of arrests and assign those with lower arrest rates to less desirable duties. Either approach gives police an incentive to make arrests. And arrests are most easily made in neighborhoods that are less cohesive and have less political power — poor and minority neighborhoods.

In 2011, Charles Bradley was 51 and had just gotten off the subway in New York City to visit his fiancée. While composing himself on the sidewalk outside her apartment, he was approached by police in an unmarked green van who asked, “What are you doing here?” Despite his polite explanation and his legitimate reason for being at that address, he was arrested, booked into jail, and charged with trespassing.

The arrest nearly cost Bradley his job as a security guard. But he was lucky in that The Bronx Defenders took his case, and a defense attorney obtained a notarized letter from his fiancée that he was visiting her. Afterward, the charges were dismissed.

Bradley’s case is illustrative of NYPD’s Operation Clean Halls, which ran from 2007 until 2012 and resulted in at least 16,000 arrests for trespassing. It also demonstrates the type of case NYPD brought because Bradley was not guilty of trespassing not only because he was visiting his fiancée but also because he was on a public sidewalk, not private property. 37% of the 16,000 trespassing cases were resolved in the defendants’ favor, usually because the prosecutors declined to prosecute, or like Bradley’s, the case was dismissed. Approximately 3,000 were diverted. The remaining around 7,000 defendants pleaded guilty. Few went to trial.

Baltimore police were infamous for using loitering charges to inflate their arrest rates, regardless of whether the person was loitering or not. This led to a 2006 NAACP lawsuit against Baltimore for racially discriminatory policing — especially using bogus loitering charges against Black men. In 2010, Baltimore agreed to roll back the arrest and quota practices in a consent decree, but six years later, a U.S. Department of Justice investigation found that Baltimore police were still being pressured to make large numbers of arrests. Between 2010 and 2015, Baltimore police made over 25,000 arrests for nonviolent misdemeanors such as loitering and trespassing — mostly in poor, Black neighborhoods. Over half of them were so obviously bogus that prosecutors declined to prosecute them.

But how often do wrongful arrests lead to wrongful convictions?

“It happens all the time,” according to Baltimore Deputy District Public Defender Natalie Finegar. “We might want to go to trial, but clients are locked up, they want to get out, they want time-served. Or we [ask for] a jury trial and go downtown to Circuit Court, and the clients get scared and want to take the deal.”

The overpolicing of petty offenses in minority neighborhoods results in guilty pleas by innocent defendants who are jailed, criminalization of harmless conduct, and criminal records for a larger portion of the community. A misdemeanor conviction serves as a gateway into the criminal justice system and greatly increases the likelihood of future convictions.

Blatant Racism

With policies of harsh overpolicing in minority neighborhoods, one would expect an admission of racism from police departments. But when confronted with statistics showing a racial disparity in arrest rates, police and their supporters simply claim that minorities commit more crimes. But what do they say when the racism is so blatant that it cannot be explained away?

Clarence Brandley and Henry Peace, two custodians at a high school in Conroe, Texas, found the body of 16-year-old Cheryl Dee Ferguson in a loft above the school’s auditorium on August 23, 1980. Ferguson was a student from another high school who was there for a volleyball game and had gone missing. Brandley was the only one of the school’s five custodians who was Black.

Texas Ranger Wesley Styles led the murder investigation. During a joint interview with Brandley and Peace, he told them, “One of you is going to have to hang for this” then turning to Brandley, he said, “Since you’re the nigger, you’re elected.” He convinced the other custodians to give statements implicating Brandley. Custodian John Sessum told him the statements were not true, and he had seen another custodian, Gary Acreman, follow Ferguson up a staircase leading to the auditorium. But Styles threatened him with arrest if he gave a statement inconsistent with Brandley’s guilt. Brandley was convicted of capital murder and sentenced to death.

During appellate proceedings, it was discovered that police lost evidence including semen, a Caucasian pubic hair, other hairs that belonged neither to Brandley nor Ferguson, and photographs taken the day of the offense that showed Brandley was not wearing the belt allegedly used to strangle Ferguson. Nonetheless, his conviction was upheld. Centurion Ministries in Princeton, New Jersey, got involved. Their investigator discovered that Acreman and Robinson, another White janitor, had told other people that they committed the murder, and Acreman gave a video deposition saying that Robinson killed Ferguson. During a hearing, Styles was unable to explain why Brandley was his only suspect from the beginning of the investigation or why he had not had the pubic hair compared with the other janitors’ hairs. He denied doing anything improper or having a racist motivation, but the Texas Court of Criminal appeals reversed the conviction. The prosecution dropped the charges on October 1, 1990. In a final bit of injustice, no one else was ever prosecuted for Ferguson’s murder, no action was taken against Styles, and Brandley received no compensation.

Brandley’s case is one of blatant racism with the extreme outcome of an innocent Black man receiving the death penalty and spending over eight years on death row. Yet, all Styles had to do was deny making the racist statement and deny having a racist motivation to escape any consequences for his actions. Sadly, overt racism is common in the criminal justice system and hardly limited to Texas or the South. For instance, a tide of racism among New York City police and in the media led to the conviction of the Central Park 5 for raping a White jogger in 1989.

The New York media even invented the term “wilding” to describe the alleged barbarism of the Black teenagers accused of the crime. Then-Mayor Ed Koch called them a “wolf pack” and publicly asserted that “eight or nine of them” gang-raped the jogger. Donald Trump publicly called for their deaths. Thirteen years later, an imprisoned rapist confessed to the crime, and DNA testing proved he was telling the truth when he asserted that, acting alone, he committed the crime. Following a decade-long legal battle, the wrongfully convicted five settled a lawsuit with the city for $40 million.

Monroeville, Alabama, police framed Walter McMilian, a 46-year-old Black man, for the 1987 murder of a White woman who worked as a clerk at a dry cleaner. The reason police chose McMillian was that he had a White girlfriend. Despite having numerous alibi witnesses, McMillian was convicted and sentenced to death in 1988. In 1993, he was exonerated.

In 1982, Marvin Anderson, then 18, was convicted of robbery and sexual offenses in Virginia. Police focused on him because the perpetrator said he “had a white girl,” and Anderson was the only Black man known by police to live with a White woman. Despite evidence that another man committed the crimes and that man’s confession to the crimes during a post -conviction hearing in 1988, Anderson was denied relief until exonerated by DNA evidence in 2001. He was given a full pardon and $200,000 plus $40,000 annually for life as compensation.

Another aspect of police racism is racist police feel free to use more coercive measures to coerce a confession from minority suspects. That is what happened to then-17-year-old Keith Bush in 1975. Suffolk County, New York, police arrested Bush for the murder of 14-year-old Sherese Watson. They kicked and beat Bush, coercing him through “brute force and physical assault into signing a false statement the [police] wrote for his signature—a statement that was never true and incorporated facts later proven to be false.”

Bush was convicted and sentenced to 20 to life in prison. He was released on parole in 2007 but was subject to monitoring and registration as a Level 3 sex offender. Bush was exonerated by DNA evidence in 2019. In a lawsuit, Bush alleged police also hid exculpatory evidence, and the state’s forensic expert gave false testimony at his trial. The detectives who handled his case were later “the subject of multiple investigations and discipline for coercing other similarly situated individuals to falsely confess,” according to the lawsuit. The lawsuit accused the detectives of racial bias and substituting their racist fantasies about how young Black men behave for proof Bush had committed a crime.

Chicago police beat Nevest Coleman and called him a “lying-assed nigger” until he confessed to a 1994 rape and murder he did not commit. Coleman had no prior criminal history and, in 2017, was exonerated by DNA testing, which implicated a man who had been convicted of other rapes. Coleman filed a federal civil rights lawsuit against the city, and the state awarded him and another man wrongly convicted of the rape-murder certificates of innocence and $169,876 in compensation.

Chicago police Lt. John Burge and the detectives who worked under him had become infamous for torturing confessions out of young Black men. That is what happened to Shawl Whirl, who was 20 years old when Detectives James Pienta and William Marley tortured him until he signed a false confession. This led to a wrongful conviction and 60-year sentence for murder in 1991.

A finding by the Illinois Torture Inquiry and Relief Commission that Whirl had been tortured led to the reversal of his conviction in 2015. The prosecution dropped the charges, and in January 2017, Chicago settled a federal civil rights lawsuit he brought against the city for $4 million. In 2010, Burge was convicted in federal court of perjury for denying he tortured suspects during direct examination in a federal civil rights lawsuit brought by other torture victims. He was sentenced to 4 1/2 years’ imprisonment.

These are just a few examples of police using violence to coerce confessions out of Black men. Presumably, police target Black men, especially Black youth, because they are less likely to have the political and economic resources to fight back. They are easy targets. Further, like the media’s invention of the concept of “wilding” during the Central Park 5 debacle, the police are likely to believe in the grotesque racial stereotype of bestial behavior being the norm among young Black men.

A study of racial politics and the adoption of state laws to require police to record interrogations showed that states with a Republican governor and a large Black population were the least likely to adopt policies aimed at wrongful convictions. Likewise, states with strong public support for Republican presidential candidates were less likely to adopt laws requiring police to record custodial interrogations, but states with citizen-initiated legislation through ballot initiatives were more likely to adopt such laws. However, states with Republican-controlled legislatures were not less likely to adopt a law requiring police to record custodial interrogations.

The primary resistance to laws requiring police recording of custodial interrogations comes from law enforcement agencies. They express the concern that witnesses and suspects are less likely to be forthcoming if an interrogation is recorded. However, studies have shown that recording interrogations does not reduce the number of confessions and incriminating statements, and there are fewer trials when police have recorded evidence.

Racism also can affect the decision to prosecute, whether the judge and jury believe witnesses — especially alibi witnesses — and whether judges grant post-conviction relief or parole boards grant parole. An example of prosecutorial racism is that, in 1991, every single federal defendant represented by the federal public defender in Los Angeles, California, on possession of crack cocaine charges was Black. The state prosecutors had the discretion on whether to charge a defendant in state court or refer them to federal court where the penalties for possession of crack cocaine were greater. The defendants tried to force the prosecution to produce records regarding their intentions for the racially skewed referrals to federal court, but the Supreme Court held that there was insufficient evidence of discrimination to justify ordering the state to produce the documentation. Because of this, “selective prosecution” remains nearly impossible to prove or challenge.

Because such racism is pervasive and because the courts remain reluctant to permit defendants the leeway needed to challenge it, we can expect it to remain a distinctive aspect of the criminal justice systems in the future.

Cross-Racial Misidentification

In a study titled “Race and Wrongful Convictions,” the October 2016 National Registry of Exonerations was used to show that eyewitness misidentification was the cause of wrongful sexual assault convictions in 79% of cases with innocent Black defendants and 51% of cases with innocent White defendants. Further, about 70% of sexual assaults with White victims were perpetrated by White men, and only 13% were perpetrated by Black men. Yet 57% of White-victim sexual assault exonerees were Black men, and only 37% were White men. This means that a Black man convicted of sexually assaulting a White woman is eight times more likely to be innocent than a White man with a similar conviction. One reason for this disparity is the difficulty Whites have in identifying non-Whites.

A study titled “Victims’ Race and Sex Leads to Eyewitness Misidentification of Perpetrator’s Phenotypical Stereotypicality” showed that White witnesses tended to exaggerate the stereotypical racial features they associated with Black criminal perpetrators (full lips, dark skin, and broad nose) they had been told were suspects in a drive-by shooting. The effect was more pronounced among women and when the victim was believed to be White or female. However, there was no effect if the crime was one not perceived as stereotypically committed by Blacks (serial killing). Previous studies had shown that Blacks with greater stereotypicality (fuller lips, darker skin, and broader noses) were perceived as more dangerous, violent, and criminal than those with less stereotypicality.

Other studies showed that misidentification was more likely in a cross-racial situation, but the witnesses’ racial prejudices did not affect the rate of cross-racial identification errors.

Studies have shown that, relative to atypical Black features such as narrower nose, lighter skin, and thinner lips, stereotypical Black features such as darker skin, broader nose, and fuller lips were unduly associated with categorizing a person as a drug dealer, misidentification of a person as a carjacker, receiving longer sentences, and a greater chance of receiving the death penalty. Other studies also showed that White men who expressed stereotypical Black features received similar biased negative judgments.

A study of Black men exonerated by the Innocence Project showed that the men who were convicted based on eyewitness misidentification had more stereotypical faces than those wrongly convicted for other reasons. However, this was true regardless of the race of the victim — suggesting that cross-racial misidentification did not play a role in the misidentification, or its role was substantially outweighed by the tendency of all eyewitnesses to exaggerate the  stereotypicality of the perpetrators’ faces. This means that Black men with more stereotypical features such as larger lips, darker skin, and a broader nose are at an increased risk of being misidentified as a criminal perpetrator.

Cross-racial misidentification has been considered enough of a problem that some states may require a jury charge on the matter when the witness and defendant are of differing races. Such was the case for Otis Boone, whose conviction for a 2011 robbery was reversed in 2017 by the New York Court of Appeals. The court announced that, “In light of the near consensus among cognitive and social psychologists that people have significant greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race, the risk of wrongful convictions demands a new approach.” Therefore, it required a trial court to give a jury charge on cross-race effects during final instructions upon request. Boone was acquitted upon retrial in 2019.

Police-Influenced Misidentification

Police witness tampering is known to have occurred in 31% of murder exoneration cases. Witness tampering by police can take on many forms. It might be as subtle as showing a witness several photographic lineups that each include a photograph of their prime suspect as the only repeatedly-shown photo in the series of lineups. Of course the face will look familiar after the witness has seen it multiple times. One study has shown that, in 57% of the exonerations involving witness misidentification, the witness did not identify the exoneree upon first viewing. This implies that police often manipulate subsequent lineups should the witness not initially identify a suspect.

Police also use black-and-white jail booking photographs for everyone but their primary suspect for whom a color job-application photograph is used. That is what happened to Marvin Anderson, who was convicted of a 1982 Virginia robbery-rape and spent two decades in prison before being exonerated by DNA evidence.

Police even insist that the perpetrator is in the line-up and explain away any discrepancies with what the witness remembers. That is what happened to Albert K. Johnson, who was convicted of a 1992 California rape after police told the victim he was in the line-up and explained away his lighter skin tone and different build than the perpetrator by telling her he had been in prison working out with little exposure to the sun. She later said she was pressured into making the identification but not until Johnson spent a decade in prison before being exonerated by DNA evidence.

A less subtle form of witness tampering happens when police simply coerce a witness into falsely implicating a suspect as happened in the Brandley case. In that case, police not only coerced witnesses into making statements that falsely implicated Brandley but also suppressed a truthful statement implicating another person. Coerced suppression of exculpatory witness statements is yet another form of witness tampering that leads to wrongful convictions.

Of course, the least subtle of all witness tampering is when the police themselves simply make up an alleged criminal offense whole cloth and testify about it. This is especially prevalent among the misdemeanors previously mentioned but also applies to felony offenses — especially drug offenses and resisting arrest. A variation on this occurs when police arrest a suspect knowing or suspecting that the person reporting the crime is lying, and no crime actually occurred.

No-crime convictions are racially skewed with Blacks making up the majority (54.7%) of no-crime drug exonerations, and Whites making up the majority of no-crime sexual assault (55.4%), murder (71.7%), and child sex abuse (68.9%) exonerations.

No-crime exonerations are also influenced by gender. Women constitute less than 5% of actual crime exonerations but almost 20% of no-crime exonerations. This overrepresentation of women in the no-crime category is sufficient to raise their percentage among exonerations overall to 10%.

The Influence of the Victim’s Race

As previously noted, one study showed that witnesses tended to exaggerate the stereotypical features of a Black suspect when they believed the victim was White or female. They did not do so when they believed the victim was a Black male, or the crime was one not considered typical for Blacks to commit. This shows one way the race of the victim can influence misidentification.

The effect of victim race interacts with the effect of the race of the defendant to cause more wrongful convictions of Blacks in murders involving White victims. According to the FBI, only around 15% of murders committed by Blacks have White victims, yet 31% of the exonerations of Blacks for murder involve White victims. This cannot be wholly accounted for by the higher rate of exoneration for Black murder defendants who comprise 40% of the people imprisoned for murder and 50% of the people exonerated of murder.

The victim’s race can also influence the harshness of punishment. For instance, in North Carolina, although Whites make up only about 40% of the state’s murder victims, 100% of the state’s death row exonerees were convicted of murdering Whites. Further, six out of the state’s seven death row exonerations (86%) involved non-White defendants accused of murdering Whites.

This type of disparity exists throughout the South. “Southern states, which tend to have larger black populations than other regions, are the most likely to wrongfully convict and sentence innocent people to death.… In other regions, whites are the most likely to be exonerated following wrongful conviction, followed by ‘other’ race/ethnic groups, followed by blacks. In Southern death penalty states, however, the trend is completely reversed. Of all black death row exonerees, nearly two-thirds have been freed in the South.”

Racism in the Length of Time Served Before Exoneration

The average time between conviction and exoneration for innocent Black murder defendants is 14.2 years. For Whites, it is 11.2 years. Death row exonerations for Blacks average 16 years compared to 12 years for Whites.

Black sexual assault exonerees spent an average of 13.3 years in prison compared to 8.9 years for Whites. They also received harsher sentences than Whites with 28% sentenced to life compared to 17% for Whites.

Australia: The ‘Managerialism’ Approach and Racism

A recent study of the managerialism approach to criminal justice in Australia showed that it increased the probability of wrongful conviction of Indigenous Australians. Managerialism involves prioritizing efficiency, expediency, and risk management over due process. One aspect of this approach is an increasing emphasis on “performance measures” and “deliverables,” making policing more akin to an industrial product. Another is permitting a negative inference when a suspect fails to respond to police questioning.

To this end, the Northern Territory’s Police Administration Act permits “paperless arrests” to encourage faster processing times and more efficient use of police resources. This, combined with an initiative called Operation Ascari II, encourages the arrest of public-drinkers, almost all of whom are indigenous even though it is a fine-only offense.

Indigenous Australians face discrimination similar to that faced by Blacks in the U.S. They represent only 3% of the country’s population but make up more than 25% of its prison population. There are no statistics available on what percentage they are of the country’s known wrongful convictions. However, a number of managerialist factors could easily lead to wrongful convictions of Indigenous Australians.

Indigenous Australians often go silent when presented with direct questions — something foreign to their culture. The silence can be misconstrued as unwillingness to cooperate, rather than cross-cultural shock. Indigenous Australians may also agree with any question put to them — especially when a lack of English skills makes it impossible to understand the question. This is seen as respecting authority in their culture. Such “gratuitous concurrence” could be misconstrued as confessing to a crime.

Even the Indigenous Australians’ own lawyers can misunderstand their responses, as was the case with Kina, who was convicted of murdering her husband after her lawyers deemed her unwilling to give evidence. Her silence was the result of cultural and language barriers, not unwillingness. Five years into her life sentence, an appeals court first heard evidence of the physical abuse she had suffered at the hands of her husband. Subsequently, the Supreme Court quashed her conviction.

This is why the involvement of an Aboriginal legal agency in the defense of Indigenous Australians is essential to a successful defense. Although the Australian experience does not transfer entirely into the American legal system, it is a strong reminder that valuing expediency over justice may get you neither and that the cultural circumstances of the defendant should be taken into account when preparing a defense to criminal charges.


Race is a factor in wrongful convictions, increasing the probability of minorities — especially Blacks — being wrongfully convicted. An acceptance of a criminality stereotype that more pronounced stereotypical features such as darker skin, broader nose, and fuller lips equates to more dangerous, violent, and criminal means that people with such more pronounced features are at even greater risk of misidentification as a criminal. The racial bias continues at all levels of the criminal justice system, making it more likely that Blacks will be coerced into falsely confessing, will be charged with more serious offenses, will be disbelieved as witnesses, will receive longer sentences, and will take longer to be exonerated. This endemic racism in the criminal justice system results in a higher representation of Blacks in exonerations. We can expect this to continue unless and until the criminal justice system takes measures to address the racism that pervades it. 


As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login



CLN Subscribe Now Ad 450x600
Advertise here
Disciplinary Self-Help Litigation Manual - Side