The growth in exonerations since 1989—now numbering 2,479—should spur defense lawyers, prosecutors and judges to take a closer look at the reasons for wrongful convictions, and take steps to avoid them.
Criminal defense lawyers in particular have a key role to play as “guardians of individuals’ constitutional rights,” according to Neal Davis, a Houston attorney whose criminal defense law firm sponsored a recent state-by-state analysis of the per capita rate of exonerations.
“That includes protecting their rights when they’ve been wrongly accused or wrongly imprisoned and need exoneration to gain their freedom,” said Davis.
The law firm’s analysis showed that Illinois leads the nation in the rate of exonerations per 100,000 residents (2.38), followed by New York (1.44) and Montana (1.41).
According to statistics compiled by the National Registry of Exonerations, false accusations, perjury, mistaken identity and racial bias are among the factors that have sent hundreds of wrongfully convicted individuals to prison, and have contributed to the fact that the U.S. imprisons more people per capita than any other country.
The National Registry data shows that the numbers have grown from just 24 in 1989 (when the Registry began tracking them), to between 152 and 179 in the period between 2014 and 2018. As of August, 2019, 73 exonerations have been registered so far this year.
There are additional reasons for optimism. Not only have the number of exonerations increased steadily; so has compensation paid to freed prisoners, with more and more states providing remuneration for freed prisoners who were wrongfully convicted.
The Registry data underlined some surprising facts.
For example, Texas—long considered a “tough on crime” state—has led the nation with 363 exonerations over the past three decades.
In fact, Harris County, where Houston is located, had the most exonerations of any county in America in 2017, even though exonerations for drug defendants declined in that year.
Illinois, while sixth in population, ranks second in the number of exonerations since 1989, with 303 as of August, 2019. New York is third with 281, and California — the most populous state — is fourth with 205. Michigan is a distant fifth with 99.
From state to state, around 90 percent of all exonerees were men, with black men representing around 50 percent of the total.
As for the crimes for which they were wrongly convicted, among all races murder led the way in the top states for exonerations, followed by drug offenses.
With the death penalty often applied for murder convictions, speedy exonerations are vital. If exoneration doesn’t come quickly enough and the sentence is carried out, all that an exoneration can do is to clear a person’s name after execution, as in the case of Cameron Todd Willingham of Texas, as shown in the film Trial By Fire.
Moreover, 35 states now provide some financial restitution for exonerated prisoners.
Texas pays $80,000 per year for every year of wrongful imprisonment. Since the current average of wrongful imprisonment is 5.69 years for the state’s exonerated prisoners, this amounts to an average of nearly half a million dollars for every person exonerated in Texas.
But there’s a great deal of variation in how much states are willing to pay in compensation to the innocent people they sent to prison. Neighboring Louisiana, where New Orleans is said by some to be the “wrongful conviction capital” of the U.S., offers a maximum of $250,000 in remuneration for exonerated prisoners. That’s regardless of how many years they spent in prison. The money is paid out in installments over 10 years.
New York, home of the infamous Central Park Five case, has no limits on remuneration. In fact, the five men in that particular case received a settlement from New York City of $40 million.
Exonerated individuals in the 17 states which do not provide remuneration have the option of filing a federal civil rights case for wrongful conviction and imprisonment to seek financial compensation. But even in states which offer some remuneration, such lawsuits might be necessary to seek fair restitution.
The analysis also looked at the reasons for increasing exonerations. These included mistakes in identifying drugs (often due to defective field test kits), greater prosecutorial accountability and the rise in DNA testing.
DNA tests alone, in fact, have been the basis for about one-fourth of all exonerations in America since 1989. That was the year in which DNA tests were first used as evidence in criminal cases.
As for the many reasons defendants were wrongly convicted in the first place, that data points to false accusations, perjury, mistaken identification by witnesses, bad forensic evidence, official misconduct and false confessions.
The National Registry of Exonerations has also found that more than half of exonerations involve overcoming false accusations or perjury, which occur most often in cases of child sex abuse and homicide.
Research shows that although sexual assaults by black men on white women are a small minority of all sexual assaults, they comprise roughly half of all sexual assaults found to have faulty witness identification.
The #MeToo movement has also spurred more women to come forward with sex crime accusations, which may have contributed to wrongful charges and convictions, according to Houston attorney Davis.
“I’m representing three kids from the same private school in Houston who all have been accused of sex crimes despite much evidence — including witnesses and texts from the alleged victims — showing that the sex they had was consensual,” Davis said in an interview.
“The current climate is almost a hysteria, like the Red Scare of the 1950s. Many parents fear what can happen to their sons.”
Houston attorney Davis says the key strategies for defense lawyers are “challenging faulty evidence and poor witnesses.”
It’s a lesson worth repeating in all the nation’s courtrooms.
Bruce Westbrook is a Houston-based journalist who was a reporter for the Houston Chronicle for 20 years and worked as a writer-editor at a leading Texas personal injury law firm for eight years. He was commissioned by the Neal Davis law firm to prepare an account of the exoneration analysis.