The protests and police shootings in Ferguson and Staten Island have focused on the disproportionate black and minority component within the legal system. So it should be little surprise that blacks and people of color are disproportionately impacted by both wrongful convictions and the death penalty – both of which we will argue have the same problem at their core.
As David Love notes in a Huffington Post article, “The Innocence Project has compiled data on the 324 people who have been exonerated through DNA evidence in the United States. Of these wrongfully convicted individuals, 70 percent are people of color, and 63 percent are African-American. They spent an average of 13.5 years in prison, collectively a total of over 4,339 years. And 6 percent received a death sentence.”
He continues, “In 43 percent of the cases for which data are available, the underlying crimes involved cross-racial identification, where the witness–such as the victim–and the suspect are of different races. Eyewitness misidentification was a factor in about three-quarters of these exoneration cases, and studies have demonstrated that people are less able to identify people of a different race.”
Moreover, “In 31 percent of the wrongful convictions leading to DNA exonerations, the wrongfully convicted person confessed, admitted guilt and/or pled guilty. Jailhouse snitches and informants–an unreliable source of information, as the testimony typically is provided in exchange for leniency or some other type of deal–had a hand in 15 percent of these convictions, while improper or unvalidated forensic science was used 48 percent of the time.”
The Innocence Project and the NAACP are now partnering to address the problem of wrongful convictions, and to prevent them from occurring in the first place.
Back in July, the NAACP adopted a resolution at its national convention to prevent wrongful convictions by improving access to DNA testing and accuracy in eyewitness interrogation techniques.
They advocate for states to “adopt core procedural reforms to improve the accuracy of eyewitness identification including blind administration of lineups, proper composition of lineups, proper instructions to the witness and taking statements in the witness’ own words at the time of the identification.”
Moreover, they want states to require electronic video recording of all felony-related interrogations in their entirety, and remove all restrictions to post-conviction DNA testing.
At the federal level, the NAACP is advocating for forensic science research funding to help develop scientifically based and uniform standards that would help to ensure the scientific evidence is valid rather than based on assumptions that are rooted in things other than double-blind scientific standards.
While Mr. Love’s piece does not tie in all the factors, one case, that he uses as an example, helps us tie the knot.
He writes, “Henry Lee McCollum, 50, and Leon Brown, 46, are prime examples of the problem here. The half-brothers, both intellectually disabled, confessed to the rape and murder of an 11-year-old girl in North Carolina in 1984. McCollum spent 30 years on death row, and Brown was serving life after his conviction was thrown out. The North Carolina Innocence Inquiry Commission found that DNA at the crime scene belonged to another man, Roscoe Artis, who was sentenced to death for a similar crime.”
The people most vulnerable to wrongful convictions are poor, people of color, many of them suffering from intellectual or mental disabilities. Many of them do not have access to competent legal assistance.
This is the point that the New York Times made yesterday in the editorial, “Shifting Politics on the Death Penalty.” The New York Times juxtaposes the January 1992 decision by then-Governor Bill Clinton to fly home for an execution which “was widely seen as an attempt to fend off the familiar charge that Democrats were soft on crime.”
This past week, Governor Martin O’Malley of Maryland commuted the sentences of the last four inmates on the state’s death row. As the Times notes, Maryland abolished the death penalty in 2013 but only for new sentences. Writes the Times, “In resentencing the condemned men to life without parole, Mr. O’Malley said that leaving their death sentences in place would ‘not serve the public good of the people of Maryland — present or future.’”
For our purposes the politics are less interesting than other factors. For instance, 35 people were executed in 2014, and that is the fewest in 20 years. Three states accounted for the majority: Texas, Missouri, and Florida. The Times notes, “And while two-thirds of those executed were black, only six had been convicted of killing a black person, even though blacks make up almost half of all murder victims.”
We would like to believe if we have a death penalty, that we are executing the worst of the worst. But instead, the Times notes, “The people executed in recent years were not the ‘worst of the worst’ — as many death-penalty advocates like to imagine — but those who were too poor, mentally ill or disabled to avoid it.”
And there is the key nexus between wrongful convictions and the death penalty – the people wrongly convicted and those who end up with the death penalty are those without the resources or mental acuity to fight it.
The Times writes, “In various decisions, the Supreme Court has helped to reduce these numbers, barring the execution of the mentally ill, the intellectually disabled and those who were minors at the time of their crimes.”
“But states have found ways around those rulings,” the Times writes, “and have executed many people who fall into one or more of these categories — people like John Errol Ferguson, who was schizophrenic and sat on Florida’s death row for 34 years before he was executed in 2013, and Marvin Wilson, who had an I.Q. of 61 and was executed in Texas in 2012.”
A study published last June in “the Hastings Law Journal found that of the last 100 people to be put to death, one-third had evidence of an intellectual disability, borderline intellectual functioning or a traumatic brain injury. At least 20 others were diagnosed with or showed symptoms of mental illness, such as schizophrenia or bipolar disorder. Others had experienced severe trauma in childhood.”
The bottom line is that the New York Times of course is pushing for the end of the death penalty. The NAACP and the Innocence Project are pushing for safeguards to protect against wrongful convictions. We are supportive of both efforts.
But unspoken here is really the core problem in the system. People of color, the poor, and the mentally and intellectually disabled end up getting hammered in the system, either because they are reliant on indigent defense that is under-resourced and over-worked, or they are people unable to properly assist in their own defense who fail to understand their rights under the law, or are easily manipulated into false confessions.
2013 marked the 50th anniversary of the constitutional right to counsel under Gideon v. Wainwright.
80 percent of criminal defendants are served by public defenders, and yet in many states today, taxpayer-funded public defenders face crushing caseloads, the quality of legal representation varies from county to county and people stand before judges having seen a lawyer only briefly, if at all.
“There is no denying that much, much needs to be done,” Attorney General Eric Holder said at a Justice Department event to commemorate the anniversary back in 2013.
So we can put safeguards in to prevent wrongful convictions and we can outlaw the death penalty, but these problems are unfortunately the system itself rather than a root problem.
—David M. Greenwald reporting