Report Finds Rampant Government Misconduct in Death-Row Exonerations, Especially in Cases with Black Defendants

A new report by the National Registry of Exonerations has found that police or prosecutorial misconduct is rampant in death-row exoneration cases and occurs even more frequently when the wrongfully death-sentenced exoneree is Black.

The report, Government Misconduct and Convicting the Innocent, released September 15, 2020, examined the factors contributing to 2,400 exonerations since 1989. It found that misconduct was present in more than half of all exonerations and nearly three-quarters of death-penalty cases, and misconduct tended to increase in frequency as the crimes charged became more severe. The Registry found misconduct in 54% of all exonerations, rising to 72% in cases in which exonerees had been sentenced to death.

The Registry also found that government misconduct was more likely to occur in cases involving Black defendants, particularly in drug or murder cases. Overall, 57% of Black exonerees and 52% of white exonerees were victims of police or prosecutorial misconduct, but, the report found, “this gap is much larger among exonerations for murder (78% to 64%)—especially those with death sentences (87% to 68%).” The rate at which misconduct occurred was lower, in general, for drug crimes, but the racial disparity was much greater (47% for Black exonerees, versus 22% for white exonerees).

The study classified misconduct into five main categories: witness tampering, misconduct in interrogations, fabricating evidence, concealing exculpatory evidence, and misconduct at trial. Police misconduct occurred in 35% of cases, while prosecutors committed misconduct in 30% of the exonerations. Police “were responsible for most of the witness tampering, misconduct in interrogation, and fabricating evidence—and a great deal of concealing exculpatory evidence and perjury at trial,” the report said. “Prosecutors were responsible for most of the concealing of exculpatory evidence and misconduct at trial, and a substantial amount of witness tampering.”

Samuel Gross, the lead editor of the report, said the report understates the problem of official misconduct. “The great majority of wrongful convictions are never discovered, so the scope of the problem is much greater than these numbers show,” he said. The problem is exacerbated, the report suggested, by the systemic failure to hold wrongdoers accountable. Joel Feinman, the chief public defender in Pima County, Ariz., commented that “I’ve never heard of any prosecutor being arrested for misconduct, and almost no prosecutors are fired or disbarred for misconduct.”