by Benjamin Tschirhart

“It is better that ten guilty persons escape than that one innocent suffer.”

Known as Blackstone’s ratio, this maxim has been an accepted rule of Western jurisprudence since long before it was uttered in this memorable form by Sir William Blackstone in the 1760s. It explicitly states an essential responsibility of the judiciary: to stand as a bulwark against the natural impulse of an outraged populace to exact vengeance. It reminds us of the duty of a free society to weigh the desire for security against the precious and tenuous liberty of its individual members. Once individual liberty is sacrificed, security is also forfeit.

In a report titled Race and Wrongful Conviction in the United States 2022, the National Registry of Exonerations sends a message to those willing to listen: our country has allowed fear to eclipse freedom. Fear of the “other” in the form of systemic racism has blinded us to the habitual and endemic false convictions of those accused of crimes. Because of the “systematic practices of misconduct by police officers,” often abetted by overzealous prosecutors, many thousands of defendants, primarily Black, have been imprisoned and branded with the stigma of felony convictions. This report follows an initial study of Government Misconduct and Convicting the Innocent, which was published in 2017. In that interval, the number of exonerations has grown by nearly 70% — from 1,900 to 3,220 in five years.

Drug Crimes: Race and Law Enforcement Latitude

The report goes on to provide data about specific types of convictions: along with drug crimes, the report also addresses murder and sexual assault. The Registry acknowledges that it tends to focus more on serious crimes with long sentences, where an exoneration will have the greatest effect. Although Blacks are overrepresented in every conviction type, drug offenses stand out for an important reason: they are rarely, almost never, reported to the police. This means law enforcement has virtually complete latitude in deciding who to investigate and where to pursue their investigations. And while studies have repeatedly shown that white and Black Americans use drugs at roughly the same rate, police and prosecutors as a whole choose to stop, search, investigate, arrest, and prosecute Black people at a significantly higher rate than whites. Blacks are 13% of drug users but make up 46% of drug convictions. This is not an accident. The War on Drugs was conceived for exactly this reason:

“You want to know what this [war on drugs] was really all about? The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did,” said John Ehrlichman, Assistant to the President for Domestic Affairs under President Richard Nixon.

While those convicted of drug offenses tend to receive lesser sentences relative to murder and sexual assault, there are still many exonerations for drug crimes.

The war on drugs has not grown any less racist with time. Black people represent 69% of drug crime exonerees. From this, it can be inferred that Blacks are 19 times more likely than whites to be falsely convicted of a drug crime in this country. It is telling that in the domain where law enforcement exercises the most freedom, the racial disparity is worse than in any other area.

Accidental Convictions

This is in part because many of those cases are in clusters — a group of convictions either false, or in serious doubt, that are all due to a common cause. Thus, many exonerations happen all at once. Seventy-two percent of these exonerations come from Harris County in Texas, where there is a policy of testing suspected drugs seized by the police, even after a plea has been entered. The Registry found that many defendants, when offered a one-time only plea deal by prosecutors, chose to plead guilty rather than risk remaining in jail until trial and possibly losing, resulting in receiving a much longer sentence. One-hundred-and-fifty-seven people chose to plead guilty, knowing they were innocent; the drugs seized from them were not drugs at all. If this happens so often in a single county, we can only imagine how many thousands of times a year this happens in other places where no tests are performed after a guilty plea has been entered. This phenomenon also casts doubt on the idea that innocent people do not plead guilty. How many innocent people are in jail or prison at this very moment because our predatory justice system is more concerned with winning than with justice?

Murder and Sexual Assault:
Racial Components

Aside from drug convictions, the two categories primarily presented in the report are murder and sexual assault. Blacks make up 55% and 59% of these exonerations, respectively. These categories differ from drug crimes in a couple of substantial ways: They are more often victim- or witness-reported, and the erroneous conviction of a Black person happens in procedurally different ways. Misidentification of Black defendants by white witnesses is extremely common. Where the cause of the false convictions is police misconduct, it often turns out that police have pressured witnesses into making false statements through lies, outright threats of violence, or other types of retaliation.

Black people are over seven times more likely to be falsely imprisoned for murder than white people, and Blacks falsely convicted of rape are often convicted of raping white women, who have been shown to have difficulty distinguishing one Black suspect from another. Often, this difficulty is leveraged by corrupt police who encouraged the witness or victim to identify an innocent Black suspect.

Sentence Disparities

Rape and sexual assault are crimes for which Blacks tend to receive extremely disparate sentences compared to whites. For example, of the exonerees studied, 27% of Blacks were sentenced to life imprisonment compared to 17% of white sexual assault exonerees. For rape convictions, 17% of Black exonerees were sentenced to 45 years or longer; whereas, the same was true for 7% of whites.

Blacks are also likely to spend more time in prison prior to exoneration — their sentences are higher across the board, but they are especially high when the victim is white. Since 1976, 75% of executions have been for the murder of white victims. Those exonerees charged with crimes against white victims are also more likely to be sentenced to life in prison.

Bad Faith Law Enforcement: Expedient Convictions

The false conviction and punishment of an innocent person is — per Blackstone — to be avoided even if it means failure to convict anyone for a crime. Sadly, the opposite has become true. Our justice system deals in suffering and is not satisfied until someone, guilty or not, suffers. Police and prosecutors across the nation have repeatedly demonstrated that they will accept any conviction.

Other wrongful convictions are not outright malicious but might still have been avoided had police or prosecutors valued truth over success and worked to establish whether or not the defendant they sent to prison was, in fact, guilty. But this is assuming (often accurately) that law enforcement or the U.S. Attorney believe the defendant to be guilty. A number of exonerees were framed outright — drugs planted, exculpatory evidence suppressed or concealed, proof of innocence withheld. Former prosecutor Marty Stroud III, who sent an innocent man to death row in Louisiana, spoke out after Glenn Ford’s 2014 exoneration: “I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning.” Alarmingly, that can likely be said of many prosecutors.

The bad faith prosecution detailed in the report falls into one of two primary categories: sometimes, police and prosecutors genuinely believe the defendant to be guilty (though not necessarily of the crime for which they are currently charged) but do not follow the rules of criminal procedure in their quest for a conviction. In these cases, the government may engage in misconduct such as Brady or Massiah violations. The Brady rule requires prosecutors to disclose materially exculpatory evidence in its possession to the defense. Brady v. Maryland, 373 U.S. 83 (1963). Brady material includes any evidence favorable to the defendant, i.e., evidence that undermines the defendant’s guilt, that would reduce the defendant’s sentence, and that affects the credibility of a witness.

Ideally, this would mean the prosecution honors its Brady obligations and dutifully turns over Brady material to the defense. But as the report shows, prosecutors violate their Brady obligations with shocking regularity (and impunity). Not only do prosecutors fail to divulge exculpatory evidence, the exonerations show that many times, prosecutors conceal the fact that they know beyond a doubt that the defendant is innocent, and they proceed with prosecution regardless.

The Massiah rule prohibits the prosecution from using incriminating statements deliberately elicited by law enforcement officers from a defendant in the absence of counsel after criminal proceedings have begun. Massiah v. United States, 377 U.S. 201 (1964). This rule is violated when, for example, prosecutors and law enforcement place a jailhouse informant into close quarters with a defendant in hopes of extracting a confession. Then, in a two for one violation, they conceal the fact that the informant has received instructions from law enforcement and may be receiving rewards for eliciting incriminating statements.

Fabricated Convictions

The second category of bad faith conviction involves the blatant framing of a defendant for a crime of which police know them to be innocent. One such group of exonerations, called the “Tulia” group, is discussed in detail in the report. “The Tulia exonerations were all the work of a single, dishonest, itinerant under-cover police officer, Tom Coleman.” In 1998 and 1999, Coleman made uncorroborated false reports that he had purchased cocaine from each of the 35 defendants. “The investigation revealed that Coleman had charged the defendants with selling quantities of highly diluted cocaine that he actually took from a personal drug stash.” Coleman had already lost his job as a deputy sheriff, was indicted for theft, and then hired to work as an undercover agent in Tulia where he fabricated 46 separate drug charges and was named as the “1999 Outstanding Law Man of the Year” by the Texas Department of Public Safety.

The report lists several groups of exonerations that arose from these types of fabrications. For example, the “Rampart” division of the Los Angeles Police Department primarily framed Central American immigrants for drug and weapons possession, and the “Watts” group, so-called because of Chicago Police Sergeant Ronald Watts, who between the years of 2016 and 2022 “directed a crew of officers who terrorized Black residents of the Ida B. Wells public housing development” where they planted drugs, extorted thousands of dollars, and were finally caught when they stole money from an FBI informant whom they believed to be a drug dealer.

“Of the many costs that the war on drugs inflicts on the Black community, the practice of deliberately charging innocent defendants with fabricated crimes may be the most shameful. We have no idea how often it really occurs,” the report concludes.

Conclusion

The data uncovered by these exonerations tells a bleak story, but there are some indications that we are seeing a change in the cultural zeitgeist. One of these is the formation of Conviction Integrity Units (“CIUs”) — “divisions of prosecutorial offices whose mission is to prevent, identify, and correct false convictions.” At first, these offices seemed to be merely for show. The first CIU was formed in 2002 in Dallas County, Texas. By 2007, there were seven of them, and they had undertaken only three exonerations. But those numbers have been growing, doubling every year for the last several years. By the end of 2021, that number had reached 93 exonerations. And still, the news is not all good: as of June 14, 2022, 53 of the 96 CIU offices currently operating across the country have produced no exonerations at all.

This information is clear and available for anyone who cares to see it. As a country, we can no longer afford to ignore the social disease of corrupt law enforcement and overzealous, unscrupulous prosecutors. Our history has been one of shameful racism, prejudice, and discrimination. But as we acknowledge this, we shine a light into a dark place where a cancer is growing, ready to consume anyone it touches.

It is time to reject the paradigm of mass incarceration, “tough on crime” political pundits, and qualified immunity for police and prosecutors. It is time to send a message to our public servants that we as a people value truth over success, justice over winning, and liberty over fear. 

Sources: law.umich.edu, Race and Wrongful Conviction in the United States 2022 –National Registry for Exonerations, reason.com, Smoke and Mirrors: The War on Drugs and the Politics of Failure (1996), vera.org

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