by Jayson Hawkins
In the first years of the 21st century, exonerations of men and women who had served decades for crimes they did not commit made national news, both because of the terrible tragedies they represent and because they were so rare. In recent years, exonerations have become less noteworthy, but they are no less frequent or tragic. A recent report published by the National Registry of Exonerations highlights not only the increasing regularity of exonerations but also the demographic trends the exonerations reflect, the policy changes that often drive exonerations, and if the exonerated are compensated for the terrible experience they endured. Since 1989, the National Registry of Exonerations has published data on every exoneration in the U.S.
As of June 1, 2021, the Registry had logged 2,795 exonerations representing just over 25,000 years of wrongful incarceration. The average time lost to wrongful conviction was 8.9 years, though the timespan varied widely depending on crime and race. The enormity of these numbers is shocking, but the Registry acknowledges that their report does not tell the whole story. That count does not individually tally group exonerations, and the incarcerated year-total only counts the time spent behind bars after conviction, not the months or sometimes years spent awaiting trial. Added to that, the sad fact is that most wrongful convictions are never corrected and therefore go uncounted. The huge number reported by the Registry is jaw-dropping, but it is undoubtedly an undercount of the phenomenon.
Crime and Race
As a general rule, the length of time spent in prison for a wrongful conviction is longer for more severe offenses. Murder tops the list at an average of 14.1 years per conviction. Sex cases followed with an average time of wrongful imprisonment varying from 12 years for sexual assault to 8 years for child sex abuse. Robbery was next with an average of 6.3 years, followed by drug convictions at an average of 1.3 years.
These trends were consistent across all racial categories, but there was a notable difference among racial groups in every category. The data shifted back and forth between whites and Hispanics, sometimes one and sometimes the other group averaging more time for a wrongful conviction.
Yet there was one consistent trend across all crime categories: Black people served more time for a wrongful conviction than any other race. In each crime category, Blacks served from 30% to 50% more time than white or Hispanic people. On average, Black exonerees spent 10.4 years in prison, compared to 7.5 for whites and Hispanics.
Digging deeper into the numbers reveals even more racial disparity. Blacks make up roughly 13% of the American population, yet they account for half of all exonerations and served 58% of all time in prison for wrongful convictions. This disparity is consistent across all crimes.
Statistics are an overlay that conceals human tragedy. The wrongful convictions described in the study try to tally up what happened to people like Tina Jimerson, a young Black woman convicted of a robbery homicide in Arkansas in 1994. Despite an absence of physical or forensic evidence, the jury accepted the circumstantial evidence offered by witnesses and convicted Jimerson and a codefendant of the crime. Defense lawyers spent years after the trial gathering exculpatory evidence concealed by prosecutors, but even after multiple witnesses recanted and another person confessed to the crime, it took 24 years for the wrongful convictions to be vacated and another two years for prosecutors to dismiss all charges.
How and Why
Jimerson’s case offers an all too common example of how the American criminal justice system can go off the rails. Robert Duboise was convicted of murder and rape in 1985 based almost solely on bite-mark analysis. Later forensic work showed that bite-mark analysis is extremely unreliable and that there might never have been a bite mark in this case to begin with. After 35 years on Florida’s death row, Duboise went free.
Elmer Daniels got a life sentence in Delaware for a 1980 rape. Then 18 years old, Daniels was convicted on forensic hair ana1ysis techniques that were subsequently discredited. After 35 years, he was paroled but could not complete the required sex offender programs because he refused to admit guilt. While back in prison for the subsequent parole violation in 2018, new evidence cleared him of the crime.
Junk forensic evidence, mistaken witness testimony, and misconduct by investigators and prosecutors have all contributed to the wrongful convictions of thousands. Historically, the barriers between those imprisoned for these convictions and some form of justice have proven nearly insurmountable, as evidenced by the decades-long processes so many have had to endure before being exonerated. This troubling trend has proven extraordinarily resilient, but recent efforts in jurisdictions across the U.S. promise possible improvement.
The uptick in exonerations in recent years, 635 between 2018 and 2021, result from a variety of trends. States that passed laws to ease DNA-based challenges in the early years of the 21st century have worked out the kinks in their processes and dramatically sped up the time between challenge and exoneration.
Scrutiny of police activity has also grown in the wake of the social justice movements that gained popularity amongst the protests that followed police killings of unarmed Black men. This scrutiny has led to the examination of drug convictions based on officer misconduct in cities like Houston and Chicago that have led to dozens of exonerations.
Of equal importance to the uptick in exonerations is the growth of Conviction Integrity Units (“CIUs”). Once only found in the largest cities, there were 85 CIUs in operation across the U.S. by 2021, including six—Michigan, Delaware, New York, New Jersey, Pennsylvania, and Virginia—that are statewide. Thirty-five of these CIUs opened in 2019, and the effects of their operations are being felt through much-needed meaningful reviews of questionable convictions.
These and other trends have had a measurable impact on exonerations. In the three years prior to the study, the average time an exoneree spent behind bars fell from 9.0 years to 7.9.
Another aspect of exoneration measured by the Registry is the compensation exonerees receive after their ordeal. Professor Jeffrey Gutman of the George Washington University Law School used data from the Registry to analyze compensation in state courts up through the spring of 2021. The analysis is incomplete because some claims are still outstanding, but the 2,637 exonerations in the study offer a valuable picture of how compensations works.
Compensation can come through no-fault compensation statutes in 36 states or through civil suits. While 90% of exonerations took place in states with statutory compensation, only 41% of exonerees in those states receive compensation; 23% of all exonerees receive compensation via civil suits.
The data show that state and municipal governments have paid out over $2.9 billion in compensation—$756 million in statutory awards and nearly $2.2 million in civil judgments. Only 45% of exonerees have received any compensation to date, which covers 57% of all the years lost to exonerees.
Following the trends in exonerations and compensation as public scrutiny focuses elsewhere remains critical to ensuring continued accountability in the criminal justice system. The Registry has tallied more than 25,000 years lost to wrongful convictions. Yet even these figures fail to capture the human cost measured in broken lives and families, lost income, and psychological trauma.
Source: The National Registry of Exonerations, law.umich.edu/special/exoneration
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