(The Root) — How many times have you heard the cynics among us quip that there are no guilty people in prison because somebody else did the crimes for which they've all been arrested, convicted and incarcerated? And yet every year — often more than once a year — the knowing smirk is momentarily wiped off our faces as someone who has been arrested, convicted and incarcerated, and maybe even been on death row, is set free after years of trying to convince anyone who will listen that he is innocent.
These freed prisoners are the very lucky few, even if the average time from their arrests to their exonerations is 13 years, according to a report (pdf) issued on Monday by scholars from the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law.
Consider two cases currently generating attention because the legal and political systems in Texas are facing the consequences of having executed men who most likely were not guilty. Since 2010 a former judge has tried to exonerate Cameron Todd Willingham, who was executed in 2004 for setting a 1991 house fire that killed his three daughters. A Columbia University Law School team has also made a strong case that Carlos DeLuna should not have been convicted of killing a convenience-store clerk in 1983; he was executed in 1989.
In Exonerations in the United States, 1989-2012: Report by the National Registry of Exonerations, we learn that of 873 exonerations examined by the registry, "Ten innocent defendants were exonerated after death, even though it is highly unusual to reconsider the guilt of defendants who are dead. Many more left prison with disabling injuries or diseases.
"Some died within a year or two of release, sometimes at their own hands," the report continues. "Others returned to prison for new crimes that they did commit. Almost all irretrievably lost large portions of their lives — their youth, the childhood of their children, the last years of their parents' lives, their careers, their marriages." (The registry did not examine the cases of at least 1,170 people cleared since 1995 under group exonerations after being framed by police.)
Because blacks are overrepresented in the incarceration population, at 37 percent, while being only 13 percent of the general population, they are likewise overrepresented among the exonerated in the registry, at 50 percent of the total.
Although these exonerations may bring some measure of assurance that the criminal-justice system can work, as the report's authors note: "These cases merely point to a much larger number of tragedies that we do not know about … Why would anyone suppose that the small number of miscarriages of justice that we learn about years later — like the handful of fossils of early hominids that we have discovered — is anything more than an insignificant fraction of the total?"
We usually hear about murder and rape cases that have generated activism and publicity, but, the authors say, "Most innocent defendants with short sentences probably never try to clear their names. They serve their time and do what they can to put the past behind them. If they do seek justice, they are unlikely to find help. The Center on Wrongful Convictions, for example, tells prisoners who ask for assistance that unless they have at least 10 years remaining on their sentences, the center will not be able to help them because it is overloaded with cases where the stakes are much higher."
Research into exonerations has been a byproduct of broader research into false convictions. The authors say, "There is a well-known list of factors that are associated with exonerations: eyewitness misidentification, false confession, perjury, false or misleading forensic evidence, official misconduct. We see all these factors on display in these cases."
One striking finding is the degree to which mistaken eyewitness identifications are seen in sexual assault exonerations: "Mistaken eyewitness identifications occurred in 80 percent of all sexual assault exonerations. More than two-thirds of sexual assault exonerations with eyewitness errors had black defendants. Of these black-defendant sexual assaults with mistaken eyewitnesses, 72 percent had white victims." Yes, to too many white people, lots of black men look alike, and even though interracial rapes are a small subset of all rapes, more than half of all exonerations in sexual assault cases involved black men wrongly identified by white victims.
"There are many possible explanations for this disturbing pattern," the authors say. "Of all the problems that plague the American system of criminal justice, few are as incendiary as the relationship between race and rape. Nobody would be surprised to find that bias and discrimination continue to play a role in rape prosecutions. Still, the simplest explanation for this racial disparity is probably also the most powerful: the perils of cross-racial identification. One of the strongest findings of systematic studies of eyewitness evidence is that white Americans are much more likely to mistake one black person for another than to do the same for members of their own race."
All in all, this registry is a good thing, providing as it does a snapshot into what goes wrong in prosecutions and a resource for those trying to correct miscarriages of justice. But to maximize its effectiveness, it needs the input of many more people to fill the gaps, the authors acknowledge.
"We will learn more as the registry matures and we gather data about a larger number of exonerations across a wider range of settings. The more we learn about false convictions, the better able we will be to prevent them or, failing that, to identify and correct them after the fact."
E.R. Shipp, a Pulitzer Prize-winning journalist, is a frequent contributor to The Root.