Op-Ed: Black people are wrongly convicted more than any other group. We can prevent this

By Christina Swarns

Oct. 7, 2022 3:05 AM PT

One of my clients, Duane Buck, was convicted of murder in 1997 and sentenced to death, in part because an expert testified that he was more likely to commit criminal acts of violence in the future because he is Black. That racist testimony led the Supreme Court to overturn Buck’s death sentence in 2017.

The belief that race is a proxy for criminality pervades the U.S. legal system. Indeed, a new report from the National Registry of Exonerations — researched by social scientists, lawyers and journalists and examining the 3,248 exonerations that have occurred in the U.S. since 1989 — demonstrates that race is a powerful driver of wrongful convictions. Among the report’s findings:

Black people are seven times more likely than white people to be falsely convicted of serious crimes.

Even accounting for crime rates, Black people convicted of murder are almost 80% more likely to be innocent than other people convicted of murder.

The exonerations of innocent Black people convicted of murder were almost 50% more likely to include misconduct by police officers than the exonerations of white people convicted of murder.

Innocent Black people were almost eight times more likely than innocent white people to be falsely convicted of rape.

Innocent Black people were 19 times more likely to be convicted of drug crimes than innocent white people, even though there was no meaningful disparity in the rate at which Black and white people sell or possess drugs.

On their own, these numbers cannot fully illustrate the harm caused by this kind of bias and inequity. Consider the case of Calvin Johnson, who has served as a board member at the Innocence Project. Johnson was tried for two sexual assaults in two different Georgia counties in the 1980s. In Clayton County, Johnson and his attorney were sometimes the only Black people in the courtroom. An all-white jury rejected the alibi testimony offered by four Black witnesses and deliberated just 45 minutes before returning with a guilty verdict. Johnson was sentenced to life in prison.

Seven months later, he went on trial for the second assault in Fulton County. Even though the Clayton County conviction made the prosecution’s case against him much stronger, he was acquitted by a jury composed of five white people and seven Black people. More than a decade after Johnson’s conviction, the Innocence Project secured DNA testing of the rape kit in the Clayton County case and conclusively established his innocence. His wrongful conviction was overturned.

The outcomes of the cases of Duane Buck and Calvin Johnson are only two examples of the persistence of racial bias in the criminal legal system. Finding long-term solutions for ensuring the fair and equitable administration of justice in the American legal system will be a complex, multigenerational undertaking. But real opportunities to begin the process of reform already exist.

For starters, anyone who works with or within the legal system should make a commitment to ensuring that their work is consistently guided by scholarship, laws and policies that mitigate racial bias in criminal legal system decision-making. For example, Illinois — a state where 90% of known false confession cases involved Black and brown people — became the first state in the country, in 2021, to prohibit police officers from using deception when interrogating people younger than 18.

We must continue to ensure the reliability of DNA testing. The report found that routinized DNA testing had all but eliminated wrongful sexual assault convictions based on cross-racial misidentifications in cases with biological evidence. This is transformative, given the extensive history of innocent Black men wrongfully convicted of such crimes. But as new technology allows the analysis of ever smaller and more complex samples of DNA, that technology must also be subject to robust scrutiny.

Every prosecutor’s office should have an independent, appropriately staffed conviction integrity unit — a team tasked with reviewing convictions presenting credible claims of innocence that works collaboratively with defense counsel on reinvestigations. As of June there were 101 such units in the U.S. The National Registry’s report found that they were responsible for 1 out of 3 exonerations from 2015 to 2022.

Crime labs can play a significant role in preventing and ameliorating racial disproportionality in wrongful drug convictions. Because the Houston crime lab conducts post-conviction testing of drugs, it uncovered 157 cases where no controlled substance was involved. Expanding this practice to additional jurisdictions, conducting such testing at the beginning of the process, and requiring crime lab testing before permitting a guilty plea in drug cases should significantly diminish wrongful convictions and reduce racial inequities.

There should be more data collection, transparency, evaluation and regulation of technologies such as facial recognition software that currently penalize communities of color. In addition, affected communities should be included in the decision-making process.

The National Registry report makes clear that for Black people, the legal process looks different, the outcomes are more severe and getting a remedy for system atrocities can take a very long time. There are no easy answers, but progress will need to start with making a commitment to recognizing the racial disparities that continue to distort the administration of justice.

Christina Swarns is the executive director of the Innocence Project.