Beneath the Statistics: The Structural and Systemic Causes of Our Wrongful Conviction Problem

The statistics related to wrongful convictions, and to race and wrongful convictions, are profoundly disturbing and illustrative of a deeply rooted problem.  Studies estimate that between 4-6% of people incarcerated in US prisons are actually innocent.

If 5% of individuals are actually innocent, that means 1/20 criminal cases result in a wrongful conviction.

To fully understand why wrongful convictions are so prevalent in our society, and to find solutions to our wrongful conviction problem, we must dig deeper into these race and wrongful conviction statistics. 

The presumption of innocence is a foundational rule in our criminal legal system. When paired with the requirement that the prosecution must prove guilt beyond a reasonable doubt, it is supposed to help ensure that someone charged with a crime is not wrongfully convicted. But what happens if, despite that instruction, unchecked biases cause jurors, judges, lawyers and others to presume some people are less innocent than others? Is it then easier to convict?

Black Americans make up only 13% of the US population, but make up 40% of the prison population and almost 60% of all DNA exonerations in the country (Sources: US Census Bureau, Prison Policy Initiative National Registry of Exonerations)

As so well explained by Bryan Stevenson of the Equal Justice Initiative, the legacy of racial injustice in America –involving centuries of white supremacy, racial violence, and the marginalization of people of color – has evolved “into the widespread presumption that people of color are suspicious, dangerous, and criminal—that young Black men are to be feared, monitored, and even hunted.”

These insidious, implicit racial biases create perceptions and presumptions that play out continuously in societal interactions with the criminal enforcement system and can manifest as the following actions directed toward Black and Brown people in America:. 

• Formation of unwarranted suspicions in everyday situations
• Inaccurate assumptions of criminal activity when there is none
• Routine arrests based on weaker evidence than someone implicitly presumed innocent, harmless, or with access to power and influence
• Rampant criminalization (with excessive sentences) of actions that disproportionately impact Black and Brown people
• Erroneously, unfairly, unjustly, and/or inequitably prosecuting, convicting, imprisoning, keeping imprisoned, and controlling upon re-entry.

The United States has the highest incarceration rate of any country on the planet. If each state were a country, Georgia would rank fourth in incarceration. These rates are not explained by higher levels of violent crime. (Source: Prison Policy Initiative)

Sweeping so many people – disproportionately Black and Brown people – into these systems of overcriminalization and mass incarceration, often caging them in horrid conditions and branding them as “criminals” or “felons” upon release, has a number of consequences:

(1) It dramatically increases the number of people in prison and thus, statistically, the number of wrongfully convicted people in prison.

(2) It creates insufficient resources and time to slow down and ensure accuracy and reliability in investigations, charging, convictions and to ensure an adequate defense.

(3) The sheer number of Black and Brown people trapped in the system can reinforce society’s implicit racial biases involving the presumption of dangerousness and criminality. 

(4) It dehumanizes large segments of the population while desensitizing others to the plight of human suffering and injustice, creating official indifference.

At a certain point, it becomes more about simply securing a conviction than ensuring conviction of the correct person or ensuring justice and community safety. Additionally, when the State routinely subjects Black and Brown people to differential treatment and inequities, it normalizes that very behavior, which can lead to official misconduct, corruption, favoritism, and / or  selective or malicious prosecution.

Indeed, not all innocent incarcerated Americans are Black people. Wrongful convictions can and do happen to almost any person, of any race. But the system that allows wrongful convictions to be so disconcertingly common–and so frustratingly difficult to correct–is a system infected to its core by racism and racial bias. The problems traceable to that racism and racial bias are pervasive enough to affect everyone.

Prosecutors’ jury notes from Johnny Gates’s 1977 capital murder trial in Columbus, Georgia. Prosecutors struck all the qualified prospective Black jurors after denoting race with the letter “N,” using dots next to their names, and ranking Black jurors as “1”s on a 1-5 scale (with “1” being least desirable). The prosecutors, who repeated this practice in every capital case involving Black defendants in the Chattahoochee Judicial Circuit from 1975-1979 to secure verdicts from all-White juries, also wrote derogatory descriptions next to the Black prospective jurors’ names.

We at Georgia Innocence Project envision and work toward a criminal legal system where the very few wrongful convictions that do occur are quickly and easily corrected. Where the common factors that enable wrongful convictions are remedied. And where the structural systems that promote and perpetuate wrongful convictions are reconfigured into something more just, equitable, accurate, reliable, and accountable.