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.”