Abstract
“Due process” is a value generally recognized as at the core of American criminal justice. At its most basic level, it involves what is often termed fundamental fairness, including a right of all citizens to a standardized set of procedures that must be adhered to when the government seeks to deprive a citizen of liberty or life. Theoretically, the criminal courtroom is the venue where due process reaches its zenith: the citizen is afforded a panoply of legal protections—guarded in large part by a neutral arbiter who also oversees the courtroom—as the government is forced to prove its case against her or him to an exacting legal standard.
In Race and Justice, Marvin D. Free, Jr. and Mitch Ruesink document major failures in these ideals for an alarming number of male citizens who are African American. From murder to drug offenses, they present vignettes of actual cases where these men have been wrongly convicted and usually wrongly imprisoned for significant periods of time. The authors use conservative criteria for wrongful conviction: In most of the cases, there is strong evidence of factual innocence (often the result of DNA evidence analyzed long after conviction) and the conviction was reversed on appellate review.
The book provides information, in varying degrees of detail, on 343 African American men wrongfully convicted between 1970 and 2008. The authors culled the cases from four websites that specialize in collecting data on the wrongly convicted. The plan of the book is logical, if somewhat redundant. After providing a good overview of the history and scope of the problem, the authors summarize compelling case narratives to illustrate each of the eight “variables” which they postulate as major sources of wrongful convictions: witness error, police misconduct, prosecutorial misconduct, false confessions, informants/snitches, forensic errors, perjury by criminal justice officials, and insufficient evidence for conviction.
The remainder of the book consists of a chapter on each of four major categories of street crime (murder, rape, drug offenses, and robbery). Each chapter presents summaries of cases of wrongful convictions for its particular category of crime, subdivided according to the eight factors identified above. The book concludes with a chapter on “areas of concern” about wrongful convictions and a set of “recommendations for improving research data.”
The organization of the book is somewhat confusing. It is not clear why many cases were included in the initial chapters rather than in the chapter devoted to the particular type of crime illustrated by the case. The depth of information presented about the cases varies widely, likely due to limitations of the authors’ source materials. This is especially problematic in the book’s appendix, which purports to describe all 343 cases but which is often redundant and which contains only very sketchy information on a number of the cases.
The authors’ extended use of statistics to attempt to analyze subsets of the cases is misplaced. Theirs is strictly a convenience sample and one in which data (e.g., victim characteristics) are often missing. In spite of this, the authors frequently present numerous descriptive statistics and attempt to establish correlations which, in a statistical sense, cannot be justified. They sometimes present underwhelming conclusions as novel, for example, the fact that the most populous states—and states with the highest numbers of African American residents—exhibit the most wrongful convictions of African Americans. A more fruitful approach may have been to more fully develop the qualitative nature of the study by seeking more in-depth data on a particular set of cases, for example, by actually interviewing defendants and courtroom actors involved in the cases.
The attempt to categorize each case using the authors’ eight “variables” is cumbersome, because the categories are so broad and there is so much overlap among them. For example, “false confession” frequently includes “police misconduct,” and intentional use of the confession would involve “prosecutorial misconduct” and likely result in “insufficient evidence for conviction.” The rationale for the authors’ selection of variables that apply and do not apply to a particular case is not always patent.
The authors present reasons for limiting their study to convictions of African American men, but the premise is undermined by their inclusion of some cases that involved only arrest (not conviction). Particularly confounding is the discussion of three cases of African American women, one case in which the defendant was White, and another case in which the defendant was acquitted.
Especially with the increasing exposure of its magnitude in recent years, wrongful conviction is a phenomenon that cries out for public policy reform. The issue is exacerbated when there appear to be patterns of disparate impact by race/ethnicity and social class. Surprisingly the book devotes little discussion to comprehensive policy issues, devoting only seven pages to what are termed areas of concern. The authors recommend changes like reduced racial profiling by the police and an increase in the numbers of African American prosecutors. Though both may be admirable, there is little direct evidence in the cases presented in the book that those were major factors in the wrongful convictions.
From a policy perspective, it would have been more helpful if the authors had proposed reforms more immediately tied to patterns in the cases they presented. For example, based on many of the cases, prosecutorial overreaching is rampant, and there is little or no penalty for overzealous prosecutors who countenance wrongful convictions. Policy reforms might include government-funded review units that seek to identify wrongful convictions, mandatory DNA testing in certain types of cases, and so-called racial justice acts. The book gives scant attention to such ameliorative possibilities.
The book’s greatest strength is its elucidation of the facts of actual cases where there is overwhelming evidence that the wrong person was convicted. It is nothing short of appalling to see the numerous miscarriages of justice that led to these men’s convictions, as well as the extreme sentences they received. A number of the men were sentenced to death for crimes they did not commit, and many men served lengthy prison terms before being declared innocent.
The fortuitous nature of how most of the men were eventually freed presents major issues for social policy. Though innocent, they were dependent on the largesse of pro bono representation, innocence projects, or religious organizations, in order to vindicate their innocence and be freed. An equally troubling issue for crime policy is that in many cases, the real perpetrator was never identified.
A strength of the book is its inclusion of tidbits of information about some of the men’s lives postexoneration. In many of these cases, the wrongful conviction and usually lengthy wrongful incarceration take their toll in the form of ruined lives over the long term. Indeed, one can appreciate how a justice apparatus that produces so many wrongful convictions of African American men can shred the social and economic fabric of African American communities as it simultaneously destroys their trust in the integrity of criminal justice itself. Even for that reason alone, the cases which this book describes should be necessary reading for American prosecutors and judges if our society is to strive to make “due process” a reality even for the poor and the marginalized.