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The Racialization of Innocence on Death Row

Nov 8, 2021 | Justice, Race & Ethnicity


A convicted felon is not always a guilty felon. In fact, conservative estimates place the innocence rate in U.S. prisons around 1%, while broader estimates range up to 6%. Regardless of precise numbers, states and the federal government have incarcerated tens of thousands of people for crimes they did not commit. These miscarriages of justice persist even on death row, where prisoners face the ultimate, irreversible punishment.

In a study at Stanford University, researchers found that courts have or will exonerate approximately 4.1% of people on death row. Innocence in capital crimes is a massive problem further perpetuated by racism. Since 1973, 186 people have been released from death row, with 100 of those identifying as Black. Despite Black men making up only 7% of the U.S. population, they account for 41% of people on death row, and more than half of those acquitted are Black men. This disparity is not only heartbreaking but also a reminder that for each innocent person locked up, a guilty perpetrator runs free.

The U.S. criminal justice system is rooted in systemic racism. Historically, American law enforcement descended from slave-catching. States ratified the Thirteenth Amendment in 1865, ending slavery while in turn generating the first prison boom fueled by the incarceration of Black and brown people to fulfill labor needs. The criminal justice system has vilified and declined to protect “outsiders” and people of color throughout U.S. history — from enslavement to Reconstruction, Jim Crow, redlining, race-based covenants, white supremacist groups, the Civil Rights Movement, police brutality, the War on Drugs, and now, a flourishing modern-day prison-industrial complex.

Consequently, the U.S. faces disparities in the accessibility of legal defense. People accused of murder from low-income communities of color do not often have the funds for a private attorney. Therefore, they must place their lives on the line with overworked, underpaid, and ill-equipped public defenders. Furthermore, the right to appeal often relies on having the financial capacity to do so. The death penalty disproportionately impacts poor and low-income communities, with inadequate defense responsible for an abundance of wrongful convictions.

Moreover, law enforcement’s history produced today’s harmful conditions. The power dynamic between suspects and law enforcement integrates with a perception of guilt to create a myriad of problems, most of all the convictions of innocent people. Police and prosecutorial misconduct, evidence fabrication, and coercion all contribute to wrongful convictions. Of course, select police officers engage in blatant racism, and officers have outwardly planted drugs or weapons on suspects of color. However, much of police racism is more subconscious, and hence, a systemic problem. The over-policing of Black communities leads to higher conviction rates for both minor and major crimes. Implicit bias ensures the presumption of guilt, especially in capital crimes, and subconscious tunnel vision runs rampant in criminal investigations. Sometimes, someone really is in the wrong place at the wrong time. 

For example, Georgia-native Troy Davis was accused of killing an off-duty police officer in 1991. Though he maintained his innocence, prosecutors presented eyewitness testimony as the “proof” that led to his conviction and eventual execution. Over time, seven of the nine original witnesses to the crime recanted their statements. This provides evidence of eyewitness testimonies’ questionable nature, as memory is rather malleable and can lead to misidentification. Memory is an “imprecise, interpretive reconstruction of events subject to contamination” that changes day to day; just consider how hard it is to remember what you ate for dinner last Thursday. Now imagine loud noises and quick movements in the midst of a crime, then being expected to recall precisely which strangers were involved. The Innocence Project claims eyewitness misidentification impacted the convictions of more than 75% of DNA exonerations

Eyewitness misidentification is particularly significant in cross-racial cases — cases where the victim is a different race from the perpetrator — in part due to the Cross Race Effect. A psychological phenomenon, the Cross Race Effect theorizes that people can better recognize and identify faces within their own racial groups. For instance, take the case of Jennifer Thompson. She was a young white woman living alone when an assailant broke into her house and sexually assaulted her. When provided a line-up by the police department, Thompson implicated a Black man, Ronald Cotton. She expressed high confidence in her identification, which positive police reinforcement further supported. Although the actual assailant looked similar, Cotton was not the rapist, yet he spent 10 years in prison for a crime he did not commit. 

Additionally, suspect line-ups do not always include the perpetrator. Expecting an eyewitness to identify the correct person, whom the police may or may not present to them, forces victims to guess, often resulting in faulty accusations. To combat this, policymakers, states, and voters must, first and foremost, prioritize the abolition of the death penalty. The Supreme Court found its existence arbitrary and discriminatory once before in its 1972 decision in Furman v. Georgia, and convictions remain disproportionate today. The most recent state to do so, Virginia eliminated capital punishment in 2021, adding itself to the current list of 23 states.

Prosecutorial and police misconduct also remain key components of miscarriages of justice. The inclusion of double-blind prosecutions offers a more practical reform. While a double-blind study withholds treatment information from both the subject and researcher, a double-blind prosecution withholds the plaintiff’s and defendant’s race and identity. Withholding the defendant’s identity from the prosecution and the jury has its benefits, as it reduces bias and ensures racism does not play a role in the trial, especially in those where the victim is of another race. Also, regarding police misconduct, policy reform must establish accountability and ensure consequences for officers who engage in unethical practices.

Similarly, juries hold eyewitness testimony, though often erroneous, in much too high regard. Prosecutors must explain its risks and potential inaccuracies before presenting such evidence. Moreover, eyewitness testimony should not be enough to sentence someone to death. The idea that our pliable memories provide enough information to prove guilt beyond a reasonable doubt in a capital trial is preposterous.

And, of course, poverty is a political choice. In a nation that chooses to prioritize personal freedoms and money over the health and wellbeing of all its people, race and wealth disparities will continue to persist in the justice system. Criminality stems from necessity. The allocation of funding to education, social services, and public resources reduces disparities in low-income communities and, in turn, lessens the need for policing. The COVID-19 pandemic unearthed and exacerbated the world’s inequities. To go back to the world as was without adjusting for those inequities is a disservice to Americans, particularly Americans of color. Let us reimagine the justice complex and create a fair and honest system — one that does not implicate its own people in crimes they did not commit.

Featured Image by Emiliano Bar on Unsplash