Eye on the Courts: Problems of Race, Mental Illness Underlie Wrongful Convictions, Death Penalty

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.’”

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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

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Tia Will

    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 people they are unable to properly assist in their own defense and fail to understand their rights under the law, or are easily manipulated into false confessions.”

    It seems totally unconscionable to me that in a system that claims to hold to the principles of “innocent until proven guilty” and “equal protection under the law” that we do not provide all of the same resources (both financial and intellectual) to the defense as we do to the prosecution.

    1. Davis Progressive

      prosecutors get more to begin with, but they have grants available that public defenders don’t, they have law enforcement that can investigate crimes, etc.  it’s not a fair playing field.

    2. Anon

      You want Universal Justice Care?  And how are we to pay for it?  Yes, yes, yes, I know – we should be willing to tax ourselves for it.  Yet we cannot even afford Universal Health Care – Medicare is in trouble, as is Social Security.  If the gov’t starts charging too much in the way of taxes to support Universal Justice Care, the wealthy and businesses will head for tax haven countries.

      1. Tia Will


        please correct me if I am misinterpreting your statement, but the consequence of your position would seem to be that you find it preferable to incarcerate the innocent than to pay for an adequate defense for all.

        1. Anon

          I will correct you for misinterpreting my statement, which may be my fault for poor wordsmithing.  You didn’t answer my question.  What you are advocating for is that the Public Defender’s Office be given the same financial resources as the Prosecutor’s Office, no?  First of all, that is not reasonable, since part of the Prosecutor’s cost includes the initial investigation of the case, before a defendant is even named.  Secondly, with shrinking budgets/increasing costs, how is that pragmatically possible?

          My preference would be to clean up some of the prosecutorial practices that are unfair.  For instance, if DNA is involved, all defendants should have the right of access to DNA testing.  Prosecutor’s should be punished for misconduct.  That would be a good start.

        2. Davis Progressive

          i would settle for more equitable.

          for example, national standards limit felony cases to 150 a year per attorney.  yet many have caseloads of 500, 600, the new york times found cases where some had 1600 annually.  so i would be happy to settle for 150 cases a year – which btw, kicks your butt and is one reason i stopped being a public defender.

  2. South of Davis

    David wrote:

    > Of these wrongfully convicted individuals, 70 percent are people

    > of color, and 63 percent are African-American.

    With “More than 60% of the people in prison racial and ethnic minorities” (per the sentencingproject.org)  it looks like that percentage of “wrongful”convictions is about the same as the number of “regular” convictions just a little higher…

      1. Frankly

        This is well explained by the fact that a high percentage of blacks live in high crime neighborhoods.  Do crime where there are fewer cops and you have a better chance of getting away with it.  Do crime where there is less of a government demand to reduce crime and you will have a better chance of getting away with it.

        Lastly, live in high crime neighborhoods and face a greater likelihood that you will end up involved in crime.

        Do we have statistics in lower crime neighborhoods for the representation of blacks as a percentage of their population?  For example, what about Davis?

        1. David Greenwald

          “This is well explained by the fact that a high percentage of blacks live in high crime neighborhoods. ”

          What percentage of blacks live in high crime neighborhoods and how do you define high crime neighborhoods?

        2. Frankly

          How do I define high crime neighborhoods?

          These would be parts of cities, or cities or counties where the crime rate is notably higher than surrounding areas, and maybe significantly higher than national averages.

          From a macro view, there is a much higher crime-per-population all along the southern states of the US, and this is where the greater concentration of blacks live.

          I’m not getting to any cause and effect, only that it makes sense that blacks would be overrepresented in crime when a larger percentage of them live where there is more crime.

  3. Davis Progressive

    it’s amazing to me how quickly the worm turned on the death penalty.  twenty years ago, no one would touch the issue.  even so-called liberal democrats ran fleeing from it.  now states are killing the death penalty either in law or in deed.  I think seven states executed people last year.

    1. Anon

      I think the move away from the death penalty gained traction when we finally saw convictions overturned through DNA testing of old evidence, where clearly the ostensible criminal provably never committed the crime.  DNA has been instrumental in the cause of justice.  Governors began to get queasy when a closer look was taken at death row cases, and too many were seen as horribly flawed.

  4. Anon

    I suspect relative wealth has more to do with the conviction rate than anything else.  Look at the O.J. Simpson case as a prime example of how the wealthy can hire themselves a bevy of lawyers and totally confuse the jury with smoke and mirrors.  Look at Ted Kennedy, who was never charged in the death of Mary Jo Kapeckne.

    On the other hand, good faith mistakes can be made by the justice system.  I remember vividly a case where the defendant, an engineer at work at the time of rape, was convicted on eyewitness testimony by the victim.  Yet 30 co-workers showed up in court to vouch for the defendant’s presence at the time of the crime.  Interestingly, the actual rapist was caught a few years afterward.  The resemblance of the defendant to the actual rapist was uncanny, both their pictures posted side-by-side in the newspaper.  They looked like two peas in a pod, both with the exact same goatee and hairstyle, not to mention facial features!  It was downright eerie…

    1. Davis Progressive

      there are good faith mistakes, but a lot of rush’s to judgment.  look at the central park 5 or michael morton.  then when the evidence doesn’t fit they either overlook it or destroy it.

  5. TrueBlueDevil

    Always the search for another victim, and how the system has wronged someone.

    When will we see an article on the recently releases data that truancy is disproportionately high in the African American community? Last time I went to traffic court, there were a lot of white males there on DUI convictions.

    When will we see articles on gang violence, which as groups commit an overwhelming portion of crime? Will we not see this because many / most of the members are black and brown?

  6. TrueBlueDevil

    The real racial bias: Cops more willing to shoot whites than blacks, study finds
    ‘Counter-bias’ rooted in concerns over social and legal consequences

    “It’s widely assumed that white police officers are more likely to shoot black suspects as a result of racial bias, but recent research suggests the opposite is true.

    An innovative study published in the Journal of Experimental Criminology found that participants in realistic simulations felt more threatened by black suspects yet took longer to pull the trigger on black men than on white or Hispanic men.”

    Read more: http://www.washingtontimes.com/news/2015/jan/5/police-officers-more-hesitant-to-shoot-black-suspe/#ixzz3O3uIny00

    Makes perfect real-world sense.

    1. David Greenwald

      Be interesting to see how that thesis squares with the ProPublica findings on the magnitude of actual shootings.

      One flag for me: “Eighty-five percent of the participants were white, and none was a police officer.” So you’re not measuring whether police officers in a simulation (which btw, doesn’t necessarily replicate realistic life or death decisions), you’re measuring non-police officers response. I don’t see how you make conclusions based on that.

      1. TrueBlueDevil

        The complete article has some very interesting points, including the fact that police know that if they shoot a black suspect, the potential for blowback is high.

        It’s also curious (and typical) how the press avoided this study. The forthcoming book will be interesting.

        1. Frankly

          And I’m sure this makes for improvements in cop-black relations.  I think we might be headed to a sort of black suspect affirmative action policing… allow more bad behavior, hesitate when confronted, allow suspects to walk… and basically walk on eggshells.

          This is the anti-stop-and-frisk approach.

          Then cops will also face criticism when they fail to act forcefully or quickly enough and other people are harmed or killed.

          I kind of like all of this from a long view because law enforcement is feeling the pain for their history of their unions pimping for money with the Democrat party.  Cops are being thrown under the bus, and executed.  Will they learn?  Will they take a page from the US military political playbook… or will the money interest be so strong that they accept the abuse from the political party that pads their pockets?

          It will be interesting to keep track of the rate of cop suicides.  I expect them to increase.

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