Black people represent less than 15 percent of the U.S. population, but they account for more than half of all exonerations, according to a new report released today.
The National Registry of Exonerations releases an annual report each spring documenting trends in cases the previous year where people who have been convicted of crimes have subsequently been found guilty. Today's report delves into racial patterns of the 3,200 exonerations the registry has documented dating back to 1989.
The registry has taken note in its past annual reports of how black citizens are much more likely to be falsely convicted and then exonerated than white defendants. This report, looking over decades of history, shows that innocent black Americans are seven times more likely than white Americans to be falsely convicted.
There are some categories, like child sexual abuse and white-collar crimes, where a greater percentage of the exonerations are of white defendants. But in all categories except for white-collar crimes, blacks are disproportionately represented compared to their share of the population.
The reasons why are varied depending on the crime. It's more complicated than simply crying "racism," and the report explores some of the systemic issues. When talking about murder, the report doesn't shy away from the high homicide rate within the black community and the fact that the vast majority of homicides among both whites and blacks target somebody of the same race. Nevertheless, you can see big disparities in the likelihood of a black person getting convicted for a murder in which they are innocent. The report calculates that even though 40 percent of defendants imprisoned for murder are black, 55 percent of those exonerated for murder are black.
We shouldn't take this to mean that we should be looking for a more representative balance of race among exonerees. Rather, it's a warning of how our justice systems handle or mishandle investigations or prosecutions when the defendants are black. The report notes, "Official misconduct is more common in murder convictions that lead to exonerations of black defendants than in those with white defendants." The report analyzes several different types of government misconduct—from concealing evidence to witness tampering to perjury by officials—and calculates that such misconduct can be found in a greater percentage of murder cases with black defendants than white defendants. The difference is just 14 percentage points, but when you account for the greater number of black exonerations, official misconduct played a role in twice as many convictions (500 blacks to 236 whites) documented in the registry. And the study attributes the difference in the rate almost entirely to police misconduct.
For sexual assault, nearly 60 percent of all rape exonerations were of black defendants, even though only a quarter of all rape prosecutions involve a black defendant. Most are the result of misidentification by rape victims, most of whom were white. Innocent black people are almost eight times more likely to be falsely convicted of rape.
The misidentification problem is well-established by now, and the report points to the simplest explanation: "One of the oldest and most consistent findings of systematic studies of eyewitness identification is that white Americans are much more likely to mistake one Black person for another than to mistakenly identify members of their own race."
The number of new exonerations for sexual assault has declined, and that's actually good news. The number has plunged because the availability of pretrial DNA testing has made it much less likely that somebody will be convicted due to misidentification. DNA-based exonerations jumped up through the 1990s and early 2000s and then started to decline as the availability of testing stopped innocent people from being convicted in the first place. There have been only two documented cases of misidentified rape victims being exonerated since 2009.
Drug crime convictions also get some heavy analysis here because of the disproportionate enforcement of drug laws and the corruption it fosters in black communities. Even though surveys from the Department of Health and Human Services show that white and black people use drugs at similar rates (12 percent and 13.7 percent, respectively), blacks are up to five times more likely to be arrested for drug crimes, depending on the year surveyed.
The report notes that there's very little effort to exonerate people convicted of low-level crimes, even if they are innocent. Much of the effort focuses on people with very long prison sentences instead. But drug crimes are a big exception. They account for 17 percent of all exonerations, the second largest category after murders.
The registry focuses on these types of exonerations because of how they illuminate some very serious trends in bad policing. The registry notes clusters and groups of exonerations due to bad policing practices that draw in dozens, possibly even hundreds, of false convictions. In Harris County, Texas, for example, 157 exonerations happened over several years of people who had pleaded guilty to drug possession. Subsequent testing uncovered no illegal drugs in the substances that had been seized. And the registry notes that these exonerations only happened because Harris County has a policy of testing the drugs in a laboratory even if the suspect pleads guilty.
In Chicago, 186 people have been exonerated of drug crimes since 2017 due to a pack of police officers planting drugs, falsifying records, and committing perjury as part of running their own drug racket.
The emphasis on race when discussing criminal justice can frustrate people who see it all as a polarizing part of the culture war. The report doesn't treat it that way, fortunately. But what it does note in its conclusion is something libertarian criminal justice reformers note all the time. The elimination of the drug war entirely would result in a more just system that would be less likely to result in minorities as targets for police abuse. The solution to some of this racist police behavior isn't training or empathy or lectures on critical race theory. It's to just end the stupid drug war. The report concludes:
The causes of this extreme racial discrepancy are plain. Black people are much more likely than white people to be stopped and searched by officers who are trolling for drugs, which puts them at risk of false drug convictions based on factual errors. And Black people are the great majority of the victims of police officers who systematically fabricate evidence to frame innocent defendants for drug crimes.
The solution is equally clear: Stop treating illicit drug use primarily as a criminal problem. The War on Drugs is a heavy burden on our country, but the worst costs are born by Black people and other people of color. If white people were stopped, searched and humiliated as often as Black people, would we even have a War on Drugs? What if police across the country engaged in methodical programs of planting drugs on innocent white people? It's hard to believe.