Perceived Black Criminality and its Impact on Contributors to Wrongful Convictions in

Cases of African American Men

A thesis presented to

the faculty of

the College of Arts and Sciences of Ohio University

In partial fulfillment

of the requirements for the degree

Master of Arts

Elizabeth J. Lattner

August 2020

© 2020 Elizabeth J. Lattner. All Rights Reserved. 2

This thesis titled

Perceived Black Criminality and its Impact on Contributors to Wrongful Convictions in

Cases of African American Men

by

ELIZABETH J. LATTNER

has been approved for

the Center for Law, Justice & Culture

and the College of Arts and Sciences by

Amanda K. Cox

Lecturer of Sociology and Anthropology

Florenz Plassmann

Dean, College of Arts and Sciences 3

Abstract

LATTNER, ELIZABETH J., M.A., August 2020, Law, Justice & Culture

Perceived Black Criminality and its Impact on Contributors to Wrongful Convictions in

Cases of African American Men

Director of Thesis: Amanda K. Cox

Historically, African Americans have been subjected to differential treatment under the law in many aspects, including police, prisons, and in respect to this research, wrongful convictions. An explanation of why African Americans are disproportionately represented among those wrongfully convicted is that contributors to wrongful conviction that involve perceived criminality, such as racial bias, eyewitness error and official misconduct, are more common in cases of African American exonerees. This experimental study examines the effects of perceived criminality and cultures of racial hostility on the contributors to wrongful convictions in 2,141 male exonerees. The present research aims to examine how contributors to wrongful conviction that involve perceived criminality differ between white and male exonerees, and further how those contributors differ in cases of black men in areas that have greater legacies of lynching versus areas that do not.

This study attempts to expand upon previous research that has examined racial threat theory, specifically the threat of black crime hypothesis, and the impact of lynchings on the current criminal justice system. Using data from the National Registry of Exonerations and the Tuskegee Institute Archives, this quantitative study used logistic regression models to predicted the probability of experiencing the six different 4

contributors to wrongful conviction. The results from this study indicate that official misconduct and mistaken witness identification (two contributors that involve perceived criminality) are more likely among black exonerees than white exonerees, and more so in states with greater legacies of lynching.

5

Acknowledgments

I wish to express my heartfelt appreciation to my supervisor, Dr. Amanda Cox, whose absolute confidence in me overshadowed any doubts I had. Without her constant support, the goal of this project would not have been achieved.

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Table of Contents

Page

Abstract ...... 3 Acknowledgments...... 5 List of Tables ...... 8 List of Figures ...... 9 Chapter 1: Introduction ...... 10 Chapter 2: Background and Conceptual Framework ...... 13 The Problem with Detecting Wrongful Convictions ...... 14 Determining the Prevalence of Wrongful Convictions ...... 16 Contributors to Wrongful Convictions ...... 19 Eyewitness Misidentification ...... 20 Official Misconduct ...... 22 Ineffective Assistance of Counsel ...... 27 Forensic Errors ...... 28 Contributors that Disproportionately Impact African American Men ...... 32 Racial Bias ...... 33 Official Misconduct ...... 34 Eyewitness Misidentification ...... 36 Harsher Punishments ...... 38 Chapter 3: Theoretical Framework ...... 40 History of Differential Treatment of African Americans Under the Law ...... 40 Perceived Black Criminality ...... 40 Racial Threat Theory and Threat of Black Crime Hypothesis ...... 43 Chapter 4: Methods ...... 47 Purpose/Research Questions and Hypotheses ...... 47 Research Design...... 48 Sampling ...... 50 Measures ...... 51 Dependent Variables ...... 51 Independent Variables ...... 52 7

Interaction Variables ...... 53 Control Variables ...... 54 Procedures ...... 55 Chapter 5: Analysis and Results ...... 56 Analysis...... 56 Official Misconduct Logistic Regression Model ...... 58 Mistaken Witness Identification Logistic Regression Model ...... 60 Perjury or False Accusation Logistic Regression Model ...... 62 Logistic Regression Models for Remaining Variables ...... 64 Results ...... 66 Predicted Probability of Official Misconduct ...... 67 Predicted Probability of Mistaken Witness Identification ...... 69 Predicted Probability of Perjury or False Accusation ...... 71 Summary ...... 73 Chapter 6: Discussion and Conclusion ...... 74 Theoretical Implications ...... 74 Limitations ...... 76 Policy Implications and Future Research ...... 77 Preventing Official Misconduct ...... 78 Preventing Mistaken Witness Identification ...... 79 Addressing Systemic Racism ...... 80 Future Research ...... 82 Conclusion ...... 83 References ...... 85

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List of Tables

Page

Table 1 Dependent Variables ...... 51 Table 2 Independent Variables ...... 53 Table 3 Correlation Matrix ...... 57 Table 4 Official Misconduct Logistic Regression Model ...... 59 Table 5 Mistaken Witness Identification Logistic Regression Model ...... 61 Table 6 Perjury and False Accusation Logistic Regression Model ...... 63 Table 7 Remaining Variables Logistic Regression Model ...... 65

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List of Figures

Page

Figure 1. Predicted Probability of Official Misconduct ...... 68 Figure 2. Predicted Probability of Mistaken Wintess Identification...... 70 Figure 3. Predicted Probability of Perjury and False Accusation...... 72

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Chapter 1: Introduction

Wrongful convictions in the United States are recurrent, detrimental to society, and hard to detect. Many people are impacted by a wrongful conviction, including but not limited to, the innocent person, the victim of the crime, and their families. Scholars and criminal justice actors alike know that wrongful convictions exist, yet they continue to plague the system. Scholars have researched contributors to wrongful convictions, where and when these events took place, and who are more likely to be affected. Most research conducted on wrongful convictions aims to answer one part of a series of questions. For example, scholars will focus on the contributing factors of wrongful conviction (Huff,

2005), while another group of scholars will address the prevalence of wrongful convictions (Gould & Leo, 2010) and another group will analyze those who are most impacted by this (Gross et al., 2017). While previous studies have focused on how wrongful convictions occur, this research aims to address why disparities within contributors to wrongful convictions occur.

The proposed research aims to analyze how cultures of racial hostility throughout the United States can impact which contributing factors of wrongful conviction the defendant experiences. Further, it intends to study how vestiges of racism may lead to differential reinforcement of the law. There are gaps in the literature in respect to the history of racism in the United States and how that impacts contributors to wrongful convictions. The present research aims to begin filling that gap. As discussed in Chapter

2, there are over 2,500 people (that are known about) who have been wrongfully convicted in the United States and many of them are African American. The results of 11

this study may show serious problems within local and state criminal justice systems that may not be highlighted in the media. This research could provoke policy changes within areas that have high concentrations of certain contributing factors, particularly those that involve the presumption of criminality. It is also important to study geographic location and race because it could expose racial disparities within one location. Determining if racial hostility impacts contributors to wrongful convictions in certain areas could lead to further research on the topic, or policy changes.

To begin analyzing the relationship between racial hostility and contributors to wrongful convictions, Chapter 2 provides the background necessary to understand wrongful convictions. This chapter begins by defining wrongful convictions and surrounding terminology, in addition to providing a discussion about why wrongful convictions are hard to document. Additionally, this chapter provides an understanding of the contributors to wrongful conviction that are established by the National Registry of

Exonerations. The chapter concludes by discussing which contributing factors disproportionately impact African American men and why.

Chapter 3 discusses the history of differential treatment that African Americans have faced in the United States. It begins with a detailed history of how vestiges of racism have transformed throughout centuries. Slavery, convict leasing, and Jim Crow laws are discussed in depth, followed by a discussion of lynching. Next, lynching’s impact on race relations in history and present day are discussed to provide an understanding of how this form of social control may influence current culture. Lastly, 12

racial threat theory is explained in relation to the threat of black crime hypothesis to provide a theoretical framework for this study.

Chapter 4 presents the methodology that was used in this study. It begins with an explanation of the purpose of this research, along with the research questions and hypothesis. Next, the research design, sampling and measures are presented. Finally,

Chapter 4 closes with a detailed overview of procedures. Chapter 5 presents the analysis and results of the present study. Logistic regression models for each dependent variable are discussed. Chapter 6 also provides a detailed discussion of the results and their practical implications. Predicted probabilities of experiencing certain contributors are discussed. Chapter 6 also includes a discussion of limitations, policy implications and directions for future research. A conclusion is given at the end of Chapter 6.

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Chapter 2: Background and Conceptual Framework

The purpose of this chapter is to provide a deeper understanding of wrongful convictions. Because this study is concerned with evaluating how perceived criminality impacts contributors to wrongful conviction in cases of African American men, it is important to understand these concepts individually. Within the first section of this chapter, wrongful convictions are defined, and their prevalence is discussed. Next, contributors to wrongful conviction and which ones disproportionately impact African

American men are presented. Thirdly, a history of differential treatment of African

Americans under the law is explained. Finally, information about lynchings and racial threat theory is presented.

Defining Wrongful Convictions

Because this research surrounds the topics of wrongful convictions and exonerations, it is important to define these terms. The NRE (2019) defines exoneration as an official act declaring a defendant factually innocent of a crime for which he or she had been previously convicted or relieving the defendant of all consequences of the criminal conviction. Such official actions can include a pardon or an acquittal or dismissal of all charges. A wrongful conviction is defined as a case in which a government entity has determined that the originally convicted individual factually did not commit the crime (Irazola, Williamson, Stricker & Niedzwiecki, 2013), or that the legal burden of proof was not met. Wrongful convictions occur based on two classifications of innocence: factual innocence and legal innocence. It is important to distinguish between the two categories, because an exoneration may be the result of 14

either classification. Factual innocence means that someone else, not the person convicted, committed the crime. Legal innocence means that there was not enough evidence presented at trial to convict the person of the crime (Gould & Leo, 2010). In these cases, the defendant may be granted a new trial, and either be acquitted of the charges or the case will be dismissed. Because the definition of wrongful conviction and exoneration is discretionary, discrepancies in the research can occur.

The Problem with Detecting Wrongful Convictions

While many scholars may have different definitions of wrongful conviction, they all seem to agree on one thing: it is almost impossible to know the exact number of false convictions that have occurred. According to University of Southern California law professor Dan Simon, the rate of error in the criminal justice system is unknown, and unknowable (2006). Another study states that it is certain that many defendants, no doubt thousands, have been falsely convicted of serious crimes and not been exonerated (Gross et al., 2005). There are numerous reasons why scholars claim we may never know the precise number of false convictions in the United States. Wrongful convictions are especially unlikely to be discovered when based on guilty pleas which produce about

95% of criminal convictions and are largely immune to post-conviction challenges

(Blume & Helm, 2014; Covey, 2013; McMunigal, 2007). As the Supreme Court has acknowledged, “criminal justice today is for the most part a system of pleas, not a system of trials” (Lafler v. Cooper, 2012, p. 1388). Although the consequences of a criminal conviction can be detrimental, it has been argued that pleading guilty to avoid the risks of a trial can be in the accused’s best interests—even if they are innocent (Bowers, 2008). 15

One of those reasons innocent people would plead guilty to crimes they did not commit is the “trial penalty,” or they plead guilty out of fear they may receive a harsher punishment if they go to trial (Covey, 2013, p.1166). Defendants plead guilty to a lesser crime because they will be given a lighter sentence, or in some cases they may be given the chance to go free immediately (Gross et al., 2005). While this is a favorable choice compared to staying in jail, risking a trial, and risking another false conviction, it increases the possibility of undetected wrongful convictions. When a defendant takes a guilty plea, they forfeit their right to a trial and appeals after conviction, removing the safeguards that are aimed to detect false convictions (Gould & Leo, 2010).

Another reason that wrongful convictions may go undetected is due to the amount of time it takes to exonerate someone. The average time it takes to exonerate someone is

11 years (Gross et al., 2005), and the NRE cites 8.8 years as the average length of sentence (NRE, 2019). It typically takes years and the investment of considerable resources to overturn a criminal conviction based on evidence of innocence, and priority is given to serious felony cases that result in long prison sentences (Gould & Leo, 2016;

Gross & O’Brien, 2008). This means that those who are wrongfully convicted and have sentences shorter than 11 years may go undetected because their sentence is shorter than the time it would take to exonerate them. A study of exonerations from 1989 to 2003 shows that 93% of exonerees were sentenced to at least 10 years, and 77% were sentenced to at least 25 years (Gross et al., 2005). Those who are convicted of less serious crimes often are not given the weight of resources, because the exoneration process would take longer than their sentence. More serious crimes, like rape and murder, 16

make up many individual exonerations. A study of cases from 1989 to 2003 shows that

96% of known exonerations of individual defendants since 1989 were either for murder

(60%) or for rape/sexual assault (36%) (Gross et al., 2005). This is because in rape cases we have the tool of DNA that can be used to prove innocence. In cases of murder, because the consequences of convictions are so severe, innocent murder defendants are more likely than other innocent defendants to have the benefit of extensive postconviction investigations (Gross & O’Brien, 2008). This reiterates the concern that those wrongfully convicted of lesser crimes may go undetected.

Determining the Prevalence of Wrongful Convictions

According to the NRE, there have been 2,503 exonerations since 1989, consisting of a total of 22,094 years lost (2019). Scholars recognize the limitations of accurately determining the prevalence of wrongful convictions, however that does not prevent them from trying. Generally, wrongful convictions are estimated by looking at the number of exonerations. In the study of cases from 1989 to 2003, Gross and colleagues (2005), found that there were 340 exonerations in that time period, 327 men and 13 women, and as a group they spent more than 3,400 years in prison for crimes they did not commit.

Samuel Gross and Barbara O’Brien reiterate that the problem with wrongful convictions is in one of their defining factors- they are inherently kept out of sight (2008). Though we may never know the exact number of wrongful convictions that occur, several studies put estimates at around 3-5% of convictions (Ramsey & Frank, 2007; Risinger, 2007;

Zalman, Smith & Kiger, 2008). In another attempt to estimate what proportion of felony convictions result in wrongful convictions, Ronald Huff (2004), conducted a survey 17

consisting of prosecutors, judges, and law enforcement officials and a national sample of attorneys general. Based on responses, the error rate was 0.5%. If the criminal justice system is indeed accurate 99.5% of the time, an estimate of 7,500 persons arrested for index crimes are wrongly convicted each year in the United States (Huff, 2004).

Additionally, Scheck, Neufeld, and Dwyer (2000), reported that DNA testing conducted in 18,000 criminal cases revealed more than 25% of prime suspects were excluded prior to trial. Those who were initially suspects were eliminated through DNA evidence but given that most criminal cases do not produce DNA to be tested, the elimination of innocent prime suspects may be difficult in those cases, leading to wrongful convictions.

According to Gross et. al (2005), the rate of exonerations has increased sharply over the fifteen years between 1989 and 2003. More specifically, there was an average of twelve exonerations a year in 1989 in comparison to an average of 42 exonerations a year in 2000 (Gross et al., 2005). It is uncertain if the numbers of wrongful convictions are increasing, and therefore so are exonerations or if there is more public attention on the issue which is leading to more exonerations. Gross et al. (2005), points out that the increase could be due to three interrelated trends, the first being that growing availability and sophistication of DNA technology allows innocent people to be exonerated through comparison of their DNA and the DNA found at the crime scene. The second trend is that

DNA development has made exonerations increasingly newsworthy (Gross et al., 2005).

This leads to an increase of awareness surrounding exonerations that occurred in 2003 rather than in 1989, leading to a higher number recorded in the NRE. Lastly, this increase in attention has led to a substantial increase in the number of false convictions that come 18

to light and end in exonerations (Gross et al., 2005). Another contributor to the increase of exonerations could be that more resources are now being devoted to the problem.

There has been an increase in innocence projects, now totaling 55 U.S. based and 12 non-

U.S. based organizations (Innocence Network, 2019).

Another reason for an increase in exonerations could be mass exonerations. Mass exonerations, in respect to this research, is defined as exonerations of innocent defendants who were falsely convicted because of large-scale patterns of police perjury and corruption (Gross et al., 2005). There have been mass exoneration events in many places, including Los Angeles, Texas, and Chicago. Officers in the Community Resources

Against Street Hoodlums (CRASH) unit of the Rampart division in Los Angeles Police

Department routinely lied in arrest reports, shot and killed or wounded unarmed suspects and innocent bystanders, planted guns on suspects after shooting them, fabricated evidence and framed innocent defendants. The 1999 scandal led to at least 100 defendants having their convictions vacated and dismissed by Los Angeles county judges

(Gross et al., 2005). In 2003, thirty-five defendants in Tulia, Texas were pardoned when it was shown that the undercover officer had charged the defendants with drug sales that never occurred (Gross et al., 2005). A Chicago mass exoneration took place from 2003 until 2008, where 42 defendants were framed for drug crimes by former Chicago police

Sergeant Ronald Watts and his tactical unit (Innocence Project, 2018). These examples of mass exonerations could contribute to the spike in exoneration numbers recently. While researchers debate the definitions of wrongful convictions and their prevalence, others 19

have firmly concluded that certain characteristics of the criminal justice system make wrongful convictions more likely.

Contributors to Wrongful Convictions

Research in the United States has found that contributing factors of wrongful conviction include eyewitness error, official misconduct of police and prosecution, false confessions, jailhouse informants, ineffective assistance of counsel and forensic errors

(Gould & Leo, 2010; Huff, 2004). A major contextual factor that contributes to wrongful convictions is the adversarial criminal justice system in the United States. Many problems that lead to wrongful convictions are a product of a system that puts a greater emphasis on crime control than due process (Huff, 2004). This system acts as a conveyor belt that is determined to settle cases. To move swiftly, defendants may be advised by counsel to take plea deals regardless of guilt or innocence. This dramatically increases the probability of wrongful convictions, as mentioned below. Another reason the adversarial system is a contributor itself is because it depends on the resources available to counsel, and in criminal cases the prosecution regularly has access to more resources than the defense (Huff, 2004). In many cases, defense counsel relies on police investigations to determine the facts, which assumes the police investigation is free of error. The way the system is designed and operates is a result of the nature of human error. Each part of the system relies on the accuracy of the others, and as discussed below, if one step is tainted it can affect the accuracy of the rest of the process.

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Eyewitness Misidentification

Eyewitness misidentification, or when someone misidentifies the person who committed the crime (NRE, 2019), is a major contributor to wrongful convictions in the

United States. The NRE (2019), states that 28% of the 2,500 cases in their registry include mistaken witness identification. Scheck et al. (2000) report that in 84% of the

DNA exonerations they examined the conviction rested, at least in part, on mistaken eyewitness identification. A common explanation for this error is that eyewitness misidentification can be a result of natural psychological errors of human judgement.

Researchers have categorized factors that impact the accuracy of eyewitness identification into two main groups: “estimator” and “system” variables (State v.

Henderson, 2011). Estimator variables are characteristics of the witness, perpetrator, or event itself. This can include things like age, race, duration of the event, distance from the event, eyewitness intoxication or stress level (West & Meterko, 2016). Gary Wells and colleagues (1983), have noted that stress alters people’s perception of an event. For example, when confronted with a weapon during a violent crime, the victim may focus more on the weapon than the details of the perpetrator (Wells & Murray, 1983). This can greatly impair the accuracy of any description the victim may give of the perpetrator. The human memory is very susceptible to error. Memory is more malleable than people realize, and it can be infused with captivating imagined memories of important events

(Loftus, 2003). Often, one is convinced what they remember to be true, but research indicates that there is little relationship between an eyewitness’s certainty and the 21

accuracy of what they recall (Wells & Murray, 1983). It does not matter how confident the witness is with their identification, they could still be mistaken.

System variables, as opposed to estimator variables, involve things that are in control of the criminal justice system, such as the identification procedures used, and administration feedback to witnesses (Judges, 2000; Wise et al., 2009). Eyewitness misidentification often occurs through police-initiated procedures (West & Meterko,

2016). These procedures include photo arrays where the witness chooses a photo of the perpetrator, and lineups where the witness chooses the perpetrator out of a group of individuals. For example, law enforcement interrogations that are suggestive can lead witnesses to mistaken memories (Loftus, 2003). These suggestions occur when law enforcement officers confirm a witness’s identification. Simple phrases such as “good job” or thanking a witness for “confirming” the officer’s suspicion may inflate the witness’s confidence in their identification, even if they are wrong (Gould & Leo, 2010).

Initial false identifications can taint future reports because eyewitnesses may confuse their memory of the true perpetrator with the person they chose during the identification process (Gould, 2007).

In a study of DNA exonerations, 79% of the cases involved positive identifications through multiple methods (West & Meterko, 2016). For example, if a victim identified a suspect in a photo array, police then had the victim identify the suspect in a lineup. The lineup is often set up so that the suspect is the only person who presents a certain height, hair color, and complexion. This may lead witnesses to choose an individual that looks the most like the offender instead of ensuring the individual is the 22

actual perpetrator (Wells, 2008). For police and prosecution, a second positive identification indicates a strong witness. However, the second positive identification of a suspect leads to a false sense of confidence and contaminates the original memory of the witness (Deffenbacher et al., 2006). False identifications are often the first step in a wrongful conviction and because the system operates under a crime control model, it is hard to identify and correct this mistake

Official Misconduct

Official misconduct, via police or prosecution, is another major contributor to wrongful convictions. The NRE (2019) defines official misconduct as police, prosecutors, or other government officials significantly abusing their authority or the judicial process in a manner that contributed to the wrongful conviction. Of the 2,500 cases in the NRE, official misconduct was present in 54% of them. Of the post-conviction

DNA exonerations reported by Scheck et al. (2000), 63% involved police and/or prosecutorial misconduct. Tunnel-vision, or when law enforcement actors become convinced of a conclusion, can cause prosecutors to be less likely to explore alternative scenarios or suspects and more likely to commit misconduct (Gould & Leo, 2010).

Tunnel vision can occur at any time during the criminal justice process and it increases the risk of a wrongful conviction. When criminal justice actors narrow in on a suspect, filter the evidence that will ‘build a case’ for conviction, all while ignoring evidence that points away from guilt, they risk charging the wrong person with the crime (Findley &

Scott, 2006). 23

False Confessions via Police Misconduct. False confessions and coercive interrogation tactics are the most common forms of police misconduct that lead to wrongful convictions. Often, it is coercive investigation techniques that elicit false confessions. False confessions are defined by the NRE as a statement made to law enforcement that was interpreted by law enforcement as an admission of participation in or presence at the crime, even if the statement was not presented at trial. False confessions are present in 12% of the cases found in the NRE and several studies of flawed prosecutions conducted since 1987 have shown that anywhere from 14% to 25% of the cases reviewed involved false confessions (Leo, 2008). Interrogations are commonly thought of as fact gathering, but scholarship has found that officers often presume the guilt of the person they are interrogating (Findley & Scott, 2006; Kassin,

2005). The primary reason that improper interrogations elicit false confessions is that the interrogators use psychologically coercive tactics (Ofshe & Leo, 1997).

A commonly used technique in modern police investigation is the Reid

Technique, which focuses on psychological pressure (Leo, 2008). Investigators may isolate the suspect from outside support, lie about incriminating evidence or encourage confession by minimizing the seriousness of the situation or rejecting claims of innocence. Other psychologically coercive techniques include repetition of questions, threats of harsher punishment or promises of leniency if compliant (Leo, 2008) A confession is coerced when the suspect believes that they have no other option but to conform. Often, the suspect will comply with the detective’s wishes because they are worn down, exhausted, or do not see any other options. The length and environment of 24

the interrogation can also lend itself to coercion. Interrogations have no legal time limit

(Drizin & Leo, 2004), and the rooms are intended to isolate and disempower the suspect.

According to a study of 66 false confessions conducted by Brandon Garrett, 92% of the false confessions came after interrogations that lasted longer than three hours (2015).

Interrogation is designed to be stressful and is meant to cause the suspect to perceive that his guilt has already been established, therefore no one will believe his denial of guilt

(Gould & Leo, 2010).

Certain populations are especially vulnerable during interrogations, for example adolescents or individuals with mental illness (Kassin et al., 2010). Individuals who are highly suggestible or compliant, such as developmentally disabled, cognitively impaired, juveniles, and the mentally ill (Gould & Leo, 2010), are more susceptible to these tactics.

For example, of the first 200 DNA exonerations in the U.S., 35% of the false confessors were 18 years or younger and/or had a developmental disability (Kassin et al., 2010).

Additionally, 44% of the exonerated juveniles and 69% of exonerated persons with mental disabilities were wrongly convicted due to false confessions (Gross et al., 2005).

It is also common for these individuals to believe that they will only be able to go home if they do what they are told (Gould & Leo, 2010). For example, in the Central Park Five case, the boys falsely confessed because they believed they would be able to go home if they did (Drizin & Leo, 2004). Innocent people who falsely confess want to escape the situation and assume their innocence will be proven later (Perillo & Kassin, 2010).

However, exoneration cases show that once a confession is obtained, the search for evidence of innocence stops (Leo & Davis, 2010). 25

Other forms of police misconduct include filing false reports, planting evidence on defendants, and perjury. This can be seen in the mass exonerations from Rampart and

Tulia, where officers filed false reports, planted evidence, and committed perjury during trial. In fact, police perjury was present in 100% of those exoneration cases (Covey,

2013). Police procedural perjury occurs when police lie about the circumstances of an encounter and often is used as a shortcut to conviction. It includes lies about consent, probable cause, and compliance with constitutional procedures, such as Miranda v.

Arizona (1966). Along with police officers committing misconduct during trial, prosecutorial misconduct occurs in this stage as well.

Prosecutorial Misconduct. Prosecutors are the most powerful actors in the criminal justice system, as they are involved in all stages of a criminal proceeding

(Bubany & Skillern, 1976; MeUlli, 1992; Vorenberg, 1981). Unlimited discretion and outside pressures from the public can incentivize misconduct. Prosecutorial misconduct exists in many different forms. Prosecutors may offer inappropriate closing arguments

(Elliott &Weiser, 2004), engage in overly suggestive witness statements (Gershman,

2002), or fail to disclose critical evidence to the defense (Gould & Leo, 2010). Once a perpetrator has been charged, prosecutors may overlook or withhold evidence from the defense, which is one of the most common forms of prosecutorial misconduct among cases of wrongful conviction (Schoenfeld, 2005; West, 2010; Yaroshefsky, 2013). This is often attributed to cognitive bias, or the tendency for people to seek out or interpret information that confirms their beliefs (West & Meterko, 2016). The prosecution’s failure 26

to turn over exculpatory evidence, or evidence that is favorable to the defendant, directly impedes the defense counsel’s ability to defend their client.

Another prevalent form of misconduct is the use of jailhouse informants, or a witness who was incarcerated with the exoneree and testified that the exoneree confessed to him or her (NRE, 2019). Often jailhouse informants commit perjury in their testimonies about the exoneree. Perjury or false accusation is when a person makes a false statement under oath that incriminates the exoneree or makes a similar unsworn statement that would have been considered perjury if under oath (NRE, 2019). Perjury or false accusation is the number one contributing factor in the exoneration data from the

National Registry of Exonerations, presenting in 58% of the cases. 21% of the DNA exoneration cases reported by Scheck et al. (2000) involved the use of jailhouse snitches and another study cites one-fifth of wrongful convictions are based on informants that lied (Natapoff, 2006). Most informants are used repeatedly and are willing to shape their stories to fit the needs of the investigation. In return, they sometimes receive a lighter sentence or do it for their own motives. Informants are often rewarded without regard to the accuracy and reliability of their statements (Zimmerman, 2001), but their testimony is given considerable weight. In many cases, the incentive deals between prosecutors and informants are not finalized until after the testimony is given (West & Meterko, 2016).

This minimizes the appearance of incentives and makes the testimony appear more credible. Testimony from these individuals is often used to “seal the deal” on the prosecution’s case. One safeguard that the criminal justice system has in place to protect 27

against contributing factors such as perjury, is defense counsel. However, when defense counsel is ineffective, they become a contributor to wrongful convictions themselves.

Ineffective Assistance of Counsel

Ineffective assistance of counsel, or when a defendant’s lawyer at trial provides blatant and extremely inadequate representation (NRE, 2019), tests the presumptions of the adversarial system of justice. An accused person’s ability to exercise their due process rights is dependent primarily on their defense counsel's ability to represent them. In

Strickland v. Washington the Supreme Court of the United States set a two-prong test to determine ineffectiveness: representation must fall below an objective standard of reasonableness, and there must be reasonable probability that the result of the case would have been different if it weren’t for counsel’s ineffectiveness (1984). This makes it hard to define effectiveness, making it difficult to prove ineffective assistance of counsel. In a study of DNA exonerations, 21% of the 255 exonerees claimed ineffective assistance of counsel, however the courts rejected all but seven cases (West, 2010).

Ideally, it is the defense counsel’s responsibility to protect their client from witness misidentifications, police and prosecutorial misconduct, and anything in between

(Bernhard, 2001). Defense counsel, in theory, should act as a shield from the rest of the system’s failings. However, a Columbia University study found that ineffective counsel was the biggest contributing factor to the wrongful conviction of criminal defendants in capital cases over a twenty-three-year period (Liebman, Fagan & West, 2000). The central reason behind ineffective counsel is inadequate funding, an unmanageable caseload, and a lack of motivation (Bernhard, 2001). As a result, defense counsel may 28

encourage defendants to plead guilty without investigating cases, which could end in conviction of an innocent person. When this safeguard fails, it breaks the barrier provided by an effective advocate between an innocent defendant and a guilty verdict (Gould &

Leo, 2010). Ineffective counsel may fail to protect against false or misleading evidence being presented that could potentially wrongfully convict their client.

Forensic Errors

False or misleading forensic evidence is present when an exoneree’s conviction was based on forensic information that was (1) caused by errors in forensic testing, (2) based on unreliable or unproven methods, (3) expressed with exaggerated and misleading confidence, or (4) fraudulent (NRE, 2019). The NRE data set reports that forensic errors played a role in 23% of the cases. Hair comparison, bitemark analysis, dog scent, and fingerprinting are more prone to misapplication than other established disciplines like

DNA or serology because there are no standards for comparison for these disciplines

(National Research Council, 2009). Regardless of the forensic discipline used in an investigation, examiners must address uncertainty and the way it is presented at trial. A report from the President’s Council of Advisors on Science and Technology (PCAST) noted that forensic examiners frequently state that their conclusions about forensic evaluations are “100 percent certain” (2016). This is convincing to a jury when stated by an expert witness. However, the statement only reflects the forensic analyst’s opinion about whether two items match and does not consider the value of that match. To give accurate testimony, examiners must know (1) whether the evidence from the crime scene matches that of a suspect, and (2) the probability that the match would occur by chance 29

(Mejia, Cuellar, Delger & Eddy, 2019). For example, a match would mean very different things if there are thousands of similar bullets in a city versus only ten similar bullets in the world. However, when the jury hears the examiner say they are 100% certain the bullets are a match, they would not understand that difference. Sometimes even well validated disciplines, such as DNA and serology, were misapplied because of overstatement, negligence, or misconduct (West & Meterko, 2016).

DNA. DNA testing is the only forensic discipline that has been recognized as a scientifically sound and consistent method for distinguishing individuals (National

Research Council, 2009). However, there are cases of wrongful conviction that include

DNA where the analysis or testimony was incorrect. This reinforces that even the most scientifically backed forensic discipline is subject to human error. While DNA testing is subject to a small probability of inaccurate interpretation, there is rarely sufficient DNA evidence at crime scenes (Gould & Leo, 2010). As a result, law enforcement officials are forced to rely on other forms of forensic evidence that are not as scientifically sound.

While Scheck and Neufeld’s Innocence Project has relied on DNA analysis to exonerate many wrongfully convicted persons (2002), doubts have been raised about other forensic disciplines that may lead to innocent people being wrongfully convicted.

Fingerprints. Fingerprinting involves the examination of fingerprints for notable features and the comparison of unidentified prints to known prints (West & Meterko,

2016). Evidence is surfacing about the problems with fingerprinting analysis (Starrs,

1999; Cole, 2003), including a lack of validity testing and an absence of validated standards for declaring a match (Mnookin, 2008). As mentioned above, a “match” would 30

mean that the fingerprints are the same, and that the probability of the match occuring by chance is low. Because the field lacks regulated criteria for a fingerprint match, that leaves the interpretation of results up to the expert that testifies in court. Unregulated standards, along with cognitive bias, could lead a 1% fingerprint match and a 99% fingerprint match to be presented the same way in court, leaving the jury to believe they carry the same weight (West & Meterko, 2016).

Hair Comparison. Another method that is raising concern is hair comparison, which compares hairs (generally human-head, pubic and body hair) from a suspect to hair found at a crime scene (Miller, 1987; Imwinkelried, 1982). Forensic analysts often identify notable features of the hairs and compare them to see if they are similar.

However, researchers have yet to determine a standard error rate or for the number of features needed for a “match,” and there is no compilation of population data in order to determine the probability that the match occurred by chance (National Research Council,

2009). Because of this lack of validity, the most an analyst could confidently say is that the hairs were similar. But in many cases, analysts testified that hairs were identical

(National Research Council, 2009).

There has been an increase in published reports about issues with hair comparison. For example, the Law Enforcement Assistance Administration Laboratory

Proficiency Testing Program, involving over 235 crime laboratories throughout the

United States, found hair comparison analysis to be the weakest of all techniques used, with 67% of individual samples being wrong in their comparison, and the majority of laboratories reaching incorrect results on four out of five hair samples analyzed (Gould & 31

Leo, 2010). In another report from 2009, the National Academy of Sciences (NAS) stated that microscopic hair comparisons could not be used to match hair to a specific individual (National Research Council, 2009). Further, in 2015, the FBI announced that its hair microscopy experts overstated the probability of a match between hair evidence and the defendant’s hair in 95 percent of the 268 cases it had reviewed (Hsu, 2015).

Serology. Serology analysis, or the study of bodily fluids, involves determining an individual’s blood type or identifying the antigens present in a blood sample. Blood type can be detected through blood, but also through semen, saliva, or vaginal fluid because the body secretes antigens into other bodily fluids (West & Meterko, 2016).

Although this science is valid and reliable, serology can be misapplied when analysts improperly interpret results by exaggerating their conclusions. For example, serology analysis excludes, but does not identify suspects, which if not explained at trial, can lead a jury to assume that similar blood type is proof of identity (Gould & Leo, 2010). A common way that serology is misapplied through testimony is a phenomenon called masking. When a sample of bodily fluid contains a large amount of the victim’s biological material and a small amount of the perpetrator’s biological material, the perpetrator’s blood type can become unidentifiable (Garrett & Neufeld, 2009). Not mentioning the potential for masking leaves room for the results to be misleading or misapplied.

Other Forensic Disciplines. Other highly disputed forensic disciplines include dog scent, bite mark analysis, arson, and ballistic comparison. Dog scent has not been scientifically validated, however in a study of 154 exonerations, six cases included dog 32

scent evidence (West & Meterko, 2016). Bite mark analysis involves the interpretation of lacerations, abrasions, and bruises on decomposing skin. According to the NAS report, some of the key areas of dispute include “the accuracy of human skin as a reliable registration material for bite marks, the uniqueness of human dentition, the techniques used for analysis, and the role of examiner bias” (National Research Council, 2009, p.176). Additionally, the National Fire Protection Association found that many of the physical effects previously thought to occur only through intentional fires, such as crazed glass and sagged furniture springs, could also occur in accidental fires (National Fire

Protection Association, 1992). Lastly, comparative bullet lead analysis (CBLA) was believed to link bullets found at a crime scene to bullets possessed by a suspect. Ballistic comparison was used in over 2,500 cases before the FBI stopped using CBLA due to a

NAS report that concluded problems with interpretations of the results of the analyses

(FBI, 2005). While these and the other contributors described above can impact anyone in the criminal justice system, some contributors are more likely to occur depending on the defendant’s race.

Contributors that Disproportionately Impact African American Men

As mentioned previously, African American men are disproportionately represented among exonerees (Smith & Hattery, 2011). According to the National

Registry of Exonerations, 49% of exonerees are black, followed by 37% white, 12%

Hispanic, and 2% classified as other (NRE, 2019). This exoneree population, just like our prison population, does not represent the population of the United States. African

Americans account for 13% of the population (Rastogi, Johnson, Hoeffel, & Drewery, 33

2011), but they make up 49% of the innocent defendants who were exonerated. Smith and Hattery (2011), explain that when a phenomenon’s pattern differentiates from the population’s pattern (in this case, the prison population), there is reason to believe that something systematic and non-random is at work (80). Racial bias, official misconduct, eyewitness error and false confessions are the main contributors to the high rate of false convictions of African Americans.

Racial Bias

Perhaps the most important contributor to the higher number of wrongful convictions of African Americans is racial bias. Racial bias is often the first step to a wrongful conviction, as it dictates official action throughout the entire investigation. Such biases might contribute directly to wrongful convictions through arrest and charging decisions, jury selection, and the manner in which fact finders evaluate witness testimony and other evidence (Bassett, 2013; Chammah, 2016; Najdowski, 2014; Richardson, 2012;

Staats, Capatosto, Wright, & Contractor, 2015). Police are more likely to focus their surveillance on black neighborhoods because they see those as more likely locations for crime (Taslitz, 2006). Because of this stricter surveillance, racial and ethnic minorities are more likely than whites to be stopped and arrested by the police (Harris, 1999). Gross

(2007), explains that blacks are more likely than whites to live and work in areas that are heavily patrolled due to high crime rates, and are more likely to draw police attention because they are several times more likely than whites to have criminal records (Shannon et al., 2011). However, the reason for this, as the NRE states, is circular. A major reason that African Americans are more likely to have criminal records is that African American 34

drivers are about as likely to be stopped as white drivers but are three times as likely to be searched (Eith & Durose, 2011). This increases the likelihood of finding contraband that leads to arrest and a criminal record. These records turn into higher bail and put African

Americans, more than whites, in a position to plead guilty or stay in jail. If they do plead guilty and return home, the next time they are stopped by the police, their criminal record will make them even more likely to be searched again. African Americans are the prime target of racial profiling—especially in the context of drug-law enforcement (20).

Racial profiling was first named in the late 1900s when it was identified with

“driving while black”—systematic programs of police officers trolling for drugs on the highway by searching cars with black or Hispanic drivers (Gross, 2007). Specifically looking at drug crime exonerations, African Americans are about five times as likely to go to prison for drug possession as whites and innocent black people are about 12 times more likely to be convicted of drug crimes than innocent white people (Gross et al.,

2017). The main reason for this racial disproportion in convictions of innocent drug defendants is that police enforce drug laws more vigorously against African Americans than against members of the white majority, despite strong evidence that both groups use drugs at equivalent rates (Gross et al., 2017). Racial bias in policing can lead to official misconduct during the investigation.

Official Misconduct

Racial bias and targeting of black people may help explain why African

Americans are more likely to have experienced official misconduct. Official misconduct is more common in convictions that lead to exonerations of black defendants than in 35

those with white defendants (Gross et al., 2017). In some cases, the evidence that convicted the innocent defendants was produced by investigations that were contaminated based on race, as was the conviction of Stanley Wrice. He was exonerated in 2013 after it was established that he had been tortured into confessing by two officers in a Chicago police unit that specialized in obtaining confessions via torture, specifically from black suspects. In another case from 1990, Michael Phillips pleaded guilty because his lawyer told him that no one would believe a black man over a white girl (Gross et al.,

2017).

The disparity of official misconduct is most evident in murder exonerations of

African Americans. The rate of misconduct by prosecutors is about the same for all murder exonerations regardless of race, however there is a significant difference in the rate of misconduct by the police. Official misconduct via police occurred in 55% of cases for black exonerees, compared to 33% for whites (Gross et al., 2017). Additionally, witness tampering occurred almost twice as often in cases that resulted in murder exonerations of black defendants than white defendants (Gross et al., 2017). Official misconduct data may be under-reported because it is deliberately concealed. Therefore, wrongful convictions are also likely to include misconduct undiscovered by the courts when the defendant is black (Gross et al., 2017). Because African Americans are more susceptible to official misconduct, the NRE (2019), states that innocent black people are about seven times more likely to be convicted of murder than innocent white people.

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Eyewitness Misidentification

Another major contributor to the higher number of wrongful convictions of

African Americans is eyewitness misidentification. According to The Innocence Project, black men receive most of the eyewitness-influenced convictions (2015). One explanation for this racial disparity is the difficulty of cross-racial identification, as eye- witness misidentification becomes distinct when the victim and perpetrator are of different races (Meissner & Brigham, 2001). For example, white Americans are much more likely to mistake one black person for another than to mistakenly identify members of their own race (Meissner & Brigham, 2001). The NRE states that the rate of eyewitness errors is much higher for innocent black defendants (79%) than for white defendants (51%) (Gross et al., 2017). A meta-analysis conducted by Kleider- Offutt et al. (2017), found that misidentifications of black men as perpetrators of crime may be influenced by whether they have stereotypical black facial features, such as darker skin, a wider nose and fuller lips (Kleider-Offutt et al., 2017). In other words, black men with stereotypical features, rather than black men in general, are most vulnerable to eyewitness misidentification error (Kleider-Offutt et al, 2017). The most common pattern of error is when a white victim is raped by an African American or Hispanic man and unintentionally identifies an innocent person as the perpetrator (Gould & Leo, 2010).

Exoneration data presents a pattern that contradicts the pattern of actual sexual assault crimes that are committed: African American men are four times more likely to be exonerated for raping white women compared to the number of times they commit this crime (Smith & Hattery, 2011). According to Taslitz (2006), a flawed cross-racial 37

identification may lead to a presumption of guilt resulting in aggressive interrogation tactics that elicit a false confession.

Witness misidentification, coerced false confessions, and all-white juries were the primary contributors to the wrongful convictions in the cases from a study by Johnson et al., (2013). Misclassifying an innocent suspect is the first and most consequential error police make because police elicit false confessions when they aggressively interrogate innocent people (Gould & Leo, 2010). As previously mentioned in the Contributors of

Wrongful Convictions section, once there is a named suspect, there is often tunnel-vision, or focusing on only that suspect. Some research suggests that the more powerless party in a situation, for example a black youth isolated in a room with multiple detectives, is likely to adopt a style of speech perceived as less credible, which could feed into officers' preconceptions of guilt (Solan & Tiersma, 2005). In a study of juvenile exonerees, 85% of those who falsely confessed were African American (Gross et al., 2005), with that false confession being the only evidence against them. When taking that false confession to trial, research notes that jury decision-making is another cause for concern. In several cases, all-white juries have, with little deliberation, erroneously convicted African

American men based on questionable evidence, such as elicited false confessions from the police (Gould, 2007). And according to Mitchell et al. (2005), once convicted, black men are also more likely to receive longer prison terms than whites. Harsher punishments, while not a contributor to wrongful conviction, is another example of differential treatment of African Americans under the law.

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Harsher Punishments

The last trend in exoneration data of African Americans is that they generally spend longer in prison. On average, black murder exonerees spent three years longer in prison before release than their white counterparts. This can be attributed to authorities being more likely to resist exonerations in cases where there was official misconduct, because it reflects badly on their agencies (Gross et al., 2017). As mentioned above, official misconduct is more common when the exoneree is black. The NRE states that among murder exonerations with official misconduct, the average time to exoneration is

15 years for black exonerees and 12.5 years for white exonerees, and even without official misconduct, the average time is 11.4 years for black exonerees and 9.2 years for whites (2019). Additionally, African American sexual assault exonerees received much longer prison sentences than white sexual assault exonerees. According to the NRE, the average minimum term for those who were not sentenced to life in prison was 29 years compared to 19 years for white exonerees (Gross et al., 2017). Sentence length without a doubt impacts the time an innocent person spends in prison because the longer the sentence, the longer the defendant may spend in prison before he or she is exonerated.

However, it does not entirely explain the racial differences in prison time before exoneration for sexual assault. When controlled for length of sentence, data still shows that black sexual assault exonerees served around three years longer than whites before they were released (Gross et al., 2017).

Historically, the rape charge has been indiscriminately aimed at black men

(Davis, 1983) and during most of the twentieth century, rape was a capital offense in 39

many states. Of those executed for rape, 90% were black (Scheck & Neufeld, 2002). The death penalty was rarely given to convicted white men and almost always given to a black man convicted of raping a white woman. According to Smith and Hattery (2009), this could be explained by the long-rooted boundary between white and black sexuality that has been controlled throughout US history. The differential treatment of African

American men under the law can be seen throughout history, as discussed below.

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Chapter 3: Theoretical Framework

History of Differential Treatment of African Americans Under the Law

To understand the relationship between contributors to wrongful convictions and perceived black criminality, it is important to understand the historical treatment of

African Americans in the criminal justice system. Since our nation’s conception, African

Americans have been subject to disparities in law and justice. In the words of Nathaniel

Cantor in 1931, “the whole legal machinery tends of operate unfavorably towards the

Negro” (62). Historically, the police were tasked with enforcing laws differently among black communities than white communities. Wagner (2005) points out that there were many laws regulating the activities of slaves and the only means of enforcing them were the police. Once slavery was abolished, police were discriminatory in their crime fighting. Ironically, black communities received limited police protection, but vigorous police presence simultaneously. They were more tolerant of crime in black communities than in white communities, because the victims in those communities were often black.

At the same time, criminal justice actors were likely to arrest blacks more often than whites, charge them with more serious offenses, convict them more easily, and punish them more severely (Muhammad, 2010). The reason behind this disparity being that police officers believed that African Americans were inherently criminal (Reuter, 1927).

Perceived Black Criminality

Crime was written into race when Frederick L. Hoffman published Race Traits in

1896. Hoffman emphasized that blacks had self-destructive tendencies, they were categorically inferior to whites and that educating them would lead to more crime. Soon 41

the rhetoric about black criminals surrounded justifications for lynchings, convict leasing, and chain gangs. Black criminality was used as a cry for national reconciliation after the

Civil War and soon, most white city dwellers in northern cities believed that African

Americans were “violent and deviant” (Muhammad, 2010, p.55). The United States is still living with the consequences of the criminalization of blackness today. It has continued to impact every aspect of society, including how people react to the presence of African Americans and the allocation of social resources to black communities.

The notion that African Americans are more likely to have violent or criminal tendencies is entrenched in the collective consciousness of Americans (Devine & Elliot,

1995). When crime rates are controlled, black presence leads to enhanced fear of crime, and cities with large black populations regularly hire more police officers relative to their entire population (Liska, Lawrence & Sanchirico 1982; Quillian & Pager, 2001; Liska,

Lawrence & Benson 1981; Kent & Jacobs, 2005). Similarly, a study from Smith (1991) shows that in surveys, blacks are regularly perceived as more violent than any other race.

These belief systems directly impact how African Americans are treated within the criminal justice system. An example of this real-life impact can be seen in mock trials where African Americans receive harsher punishments than whites in identical cases

(Sweeney & Haney 1992; Rector, Bagby & Nicholson 1993) and in experiments where black and white figures commit the same act but the black figure’s behavior is seen as more threatening and predatory (Duncan 1976; Sagar & Schofield 1980).

Additionally, the treatment of African American men in the criminal justice system today can be linked to historical ideals of racism that transformed throughout 42

centuries. Institutions such as slavery and Jim Crow that produced black codes and lynchings had a detrimental effect on black people in modern America. An example of this is “broken windows policing,” where police heavily patrol high-crime communities.

According to Stevenson (2019), these policies are not as racialized as the Black Codes, but they have the same effect: African Americans are disproportionately targeted by police. Additionally, new language has emerged for the “crimes” created under the Black

Codes: for example, “driving while black,” which references the discriminatory targeting of African American drivers by police officers for stops and searches. These discriminatory practices and values could impact contributors of wrongful convictions that involve perceived black criminality, specifically official misconduct, and eyewitness misidentification, among African American male exonerees.

Lynching’s Legacy and Racial Threat Theory

Some studies directly link tough-on-crime policies that disproportionately affect blacks to the country’s history of lynchings. Because this research uses lynchings to measure perceived black criminality and its impact on contributors to wrongful convictions, it is important to understand the impact lynchings have had on other aspects of the criminal justice system. According to Williams and Holmes (1981), “the death penalty and long prison sentences have simply replaced lynching” (37). This is supported by studies that show states with a higher percentage of lynching recently imprisoned a greater proportion of their residents and imposed more death sentences than states where lynching was uncommon (Jacobs, Malone & Iles, 2012; Jacobs, Carmichael & Kent,

2005). Further, King et al., (2009) found that protections against hate crimes are weaker 43

where lynchings were more common. Endorsing claims from Waquant (2000),

Murakawa (2014), and Alexander (2010), these findings show that the violence used to sustain white supremacy in the Jim Crow Era continues to impact the criminal justice system today.

Racial Threat Theory and Threat of Black Crime Hypothesis

In seeking to explain how lynchings have influenced contemporary America, researchers have drawn on racial threat theory (Corzine, Creech & Corzine 1983; Tolnay

& Beck, 1996; Blalock, 1967; Blauner, 1972; Liska, 1992). Racial threat theory proposes that majority groups impose mechanisms of social control over minority groups, whose populations are growing, to protect their existing power (Blalock, 1967). There are three aspects to the hypothesis: political threat, economic threat, and criminal threat. The political threat hypothesis argues that as the percentage of blacks in the population grows, the state increasingly views blacks as a threat to the political progression of whites. The economic threat hypothesis asserts that competition between blacks and whites for resources results in increased social control imposed on blacks (Blalock, 1967). This research is focused on the criminal threat hypothesis, or the threat of black crime hypothesis. Research is primarily supportive of racial threat theory within the criminal justice system. Threat theorists have used it to explain forms of social control such as arrest rates (Brown & Warner 1992; Liska & Chamlin 1984; Liska, Chamlin & Reed

1985), police force size (Greenberg, Kessler & Loftin 1985; Jackson & Carroll 1981;

Jacobs 1979; Liska, Lawrence & Benson 1981), police use of deadly force (Chamlin

1989), incarceration rates (Myers 1990; Tittle & Curran, 1988), and executions (Phillips, 44

1987). When a majority group feels threatened politically, economically, or criminally, social control exerted on minority groups increases.

Historically, lynchings were used to control recently freed slaves and to reinforce white superiority (Ayers 1984; Dollard 1957; Tolnay & Beck, 1996). In the former confederate south, lynchings of African Americans became an exclusive public ritual

(Hoelscher, 2003) and reflected extreme racial hatred (Mears et al, 2019). While lynching was not confined to the south, Brundage (1993, p.3) mentions, “it assumed proportions and a significance there that were without parallel elsewhere.” Explanations for this concentration of lynching vary, but research supports that the newly freed slaves presented an increasing competition to southern whites, both politically and economically

(Tolnay & Beck, 1996; Tolnay, Beck, & Massey, 1992; Beck & Tolnay, 1990; Corzine,

Huff-Corzine, & Creech 1988; Olzak 1990). In contrast, explanations for lynchings in the

North surround the increase of black migrants to northern urban areas that may have instigated racial tension (Jackson 1967; Wilson 1978). Researchers have found support that whites who lived in counties with high proportions of blacks perceived them as a threat to their dominance (Corzine, Creech, & Corzine 1983; Reed 1972; but see Mintz

1946; Tolnay, Beck & Massey 1989). Explanations such as these support Blalock’s

(1967) racial threat theory.

Research suggests that lynchings have contributed to perceived black criminal threat and, further, a criminal threat to whites (Durso & Jacobs, 2013; King et al., 2009;

Stewart et al., 2018; Mears et al., 2019). As mentioned above, support for capital punishment and limited hate crime enforcement is common where lynchings were more 45

prevalent (Messner et al., 2005; King et al., 2009). Further, Durso and Jacobs (2013), found increased participation in white supremacist groups in these areas. These findings suggest whites are concerned about blacks as sources of crime. In a meta-analysis conducted by Mears et al., (2019), it was found that whites who live in communities with a greater historical legacy of racial hostility, as reflected by higher levels of lynchings, were more likely to view blacks as a threat. Specifically, whites from those areas were more likely to view blacks as criminal threats and as more likely to commit crimes against whites.

The above study and prior work determine that one result of lynching was the

“conflation of blackness and crime” (Wacquant, 2001, p.118), which is still prevalent in modern America. This conflation may reinforce views of blacks as criminal and as likely to victimize whites, and contribute to racial disparities in the arrest, prosecution, punishment of blacks (Alexander, 2010; Chiricos et al., 2004; Mears et al., 2016; Ulmer

& Laskorunsky, 2016; Unnever, 2014), and in respect to this research, wrongful convictions. The conflation of blackness and crime in the United States could explain why black men are subjected to higher rates of eyewitness error and official misconduct via police as these contributors may be indicative of perceived criminality.

Discriminatory policing can lead to African Americans being arrested and tried for crimes they did not commit. For example, if police believe that blacks commit more crime, then they may be more likely to commit misconduct, leading to potential wrongful convictions. Additionally, unconscious victim bias can impede the identification process and lead to an innocent person being chosen. If a white victim is more likely to believe 46

that blacks are inherently criminal, specifically against whites, then they may be more likely to misidentify an African American as the perpetrator of the crime. Perceived black criminality has the power to impact every aspect of the criminal justice system including wrongful convictions.

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Chapter 4: Methods

Purpose/Research Questions and Hypotheses

Racial threat theory, and research from Mears et al. (2019), shows that whites who live in areas with a higher legacy of lynching are more likely to view blacks as a criminal threat. To explore the relationship between perceived black criminality and contributors to wrongful convictions, this research aims to answer the following questions:

1. How do contributors to wrongful conviction that involve perceived criminality

(official misconduct, eyewitness misidentification, and perjury and false

accusation) differ between black and white male exonerees in areas that have a

strong legacy of lynching?

2. How do contributors to wrongful conviction that involve perceived criminality

(official misconduct, eyewitness misidentification, and perjury and false

accusation) differ between black male exonerees in areas that have a strong legacy

of lynching versus areas that do not?

Research also states that contributors such as eyewitness misidentification and official misconduct are more likely to occur in wrongful convictions of African

Americans (Gross et al., 2017). Based on these findings, it is possible that the assumption of criminality may increase the likelihood that cases of black men will involve the contributors mentioned above. If citizens that live in areas with a greater legacy of 48

lynching believe that blacks are criminal threats to whites, there may be a higher rate of eyewitness error among cases of African Americans in those areas. Similarly, official misconduct may be more likely in cases of African American wrongful convictions because police in those areas may have preconceived notions of blacks as criminals.

Therefore, the following hypotheses were formulated:

Ho (1): Contributors that involve the assumption of criminality (eyewitness

misidentification, perjury and false accusation, official misconduct) will be more

likely in the areas where lynchings were more prevalent

Ho (2): Contributors that involve the assumption of criminality (eyewitness

misidentification, perjury and false accusation, and official misconduct) will

be more common among black men compared to white men in areas where

lynchings were more prevalent

Research Design

It is impossible to know how many wrongful convictions there are in the United

States because they are only discovered through the exoneration process. Exonerations are underinclusive of wrongful convictions due to the failure of the justice system to identify and overturn all cases in which innocent individuals have been convicted (Bedau

& Radelet, 1987; Gould, 2014; S. R. Gross, 2013), but they are the best estimates that exist. A source that provides a strong estimate of exonerations in the United States is the most efficient way to answer my research questions. This quantitative research will 49

utilize secondary data from the National Registry of Exonerations (NRE). The exoneration data is in an Excel spreadsheet that is publicly available from the National

Registry of Exonerations website. This exoneration data was originally collected to study the process of exoneration and the factors that lead to wrongful convictions, but in this research, it will be used to answer new questions.

The NRE dataset provides strong information on cases of known wrongful convictions and is further discussed below. Because this research involves studying contributors to wrongful convictions, it is important to utilize a dataset that has information on those contributors, as this dataset does. Along with the NRE data set, this research will utilize lynching data from the Tuskegee Institute Archives. This dataset provides a count of lynchings that occurred in each state according to race. That is important to this study because previous research has shown that there is a link between perceived black criminality and an area’s history of lynching (Mears et al., 2019).

Therefore, this study will use lynchings as a measure of perceived black criminality and observe its impact on current contributors to wrongful convictions.

One of the strongest advantages to these datasets is that they are freely available.

Secondary data is especially useful for making comparisons over time (Vartanian, 2010).

In this research, the lynching database and the exoneration data examine events over a long period of time. Given the timeframe of this project, primary data collection of this information would not be feasible. Because someone else has already collected the data, the analysis of the data can begin sooner.

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Sampling

The NRE relies entirely on publicly available information from media or other innocence projects and collects, analyzes, and disseminates information about all known exonerations in the United States, from 1989 to present. The NRE reports the frequency, distribution, contributors, costs, and consequences of wrongful convictions. This spreadsheet includes 2,469 cases and reports the following variables: age at time of crime, race, gender, state, year that crime occurred, year of conviction, year of exoneration, federal vs. non-federal cases, contributing factor, crime, DNA cases, death penalty cases and guilty pleas, which will allow me to control for them. The contributing factors that are included in the data set are mistaken identification, false confessions, false or misleading forensic evidence, perjury/false accusation, official misconduct, and inadequate legal defense. The crimes that are accounted for include murder, sexual assault, child sex abuse, drug crimes, robbery, and “other.” Race includes Black,

Hispanic, “Other,” and White and gender includes male and female (National Registry of

Exonerations, 2020).

African American men are disproportionately impacted by wrongful convictions in the United States; therefore, this research will be studying men to explore the relationship between contributors to wrongful convictions and lynchings. The sample will include 2,141 cases (female and federal cases excluded). The federal cases were excluded because one aspect of this research involves a state’s history of lynching. Federal cases are not confined to one state, so observing the impact of lynching on that case would not be practical as the lynching data is divided by state and these cases include multiple 51

states. The lynching dataset accounts for documented lynchings that occurred in the

United States from 1882-1968. It is categorized by state and race (white or black victims). The dataset only includes data pertaining to states that had lynchings and those that were part of the union at the time.

Measures

Dependent Variables

As seen below in Table 1, the dependent variables include the following contributors to wrongful convictions: false confession, mistaken witness identification, false or misleading forensic evidence, official misconduct, perjury or false accusation, and inadequate legal defense. One area of interest will be contributors that involve perceived criminality, such as official misconduct, perjury or false accusation, and mistaken witness identification. All contributors are binary, with a “1” meaning the contributor is present in the case, and a “0” if it is not.

Table 1

Dependent Variables

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Independent Variables

Table 2 (below) gives an overview of the independent variables. Independent variables include age, year of conviction, race, sentence severity, DNA, location, and lynching rates. Race was coded to include a series of dummy variables based on classifications made by the NRE: Black, Hispanic, Native American, Caucasian, and

Asian (NRE, 2019). The variable “Other” was created to combine those who identified as

Native American and Other as they were the two smallest groups. White serves as a reference category and is coded to always be 0. Lynching rates were calculated based on data retrieved from the Tuskegee Institute Archives described above. Some states have a lynching rate of zero because there are no documented lynchings in that state. Those states include Alaska, Connecticut, Hawaii, Rhode Island, Massachusetts, and New

Hampshire. The rate for both white and black victims was calculated to create a measure of perceived black criminality in that state. As previously mentioned, an area’s history of racial hostility, as reflected by lynchings, was found to be linked to African Americans being viewed as a threat (Mears, 2019). More information about age, year of conviction, sentence severity, DNA, and location can be found in Table 2.

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Table 2

Independent Variables

Interaction Variables

Interaction variables include lynching rate of blacks in the south, and a variable to measure being black in a state with a black lynching rate. The interaction term that measures lynching rates of blacks in the south was created to record the relationship between black lynching rates in the south and contributors to wrongful conviction. As mentioned previously, literature shows that the majority of lynchings happened in the southern states as a response to the freedom of African American slaves (Tolnay & Beck,

1996; Tolnay, Beck, & Massey, 1992; Beck & Tolnay, 1990; Corzine, Huff-Corzine, &

Creech 1988; Olzak 1990). Creating an interaction term based on lynching rate and 54

location allows for deeper analysis into perceived black criminality, as reflected through lynching rates, based on geographic location in the United States. Racial Threat Theory supports that lynchings were used as a form of social control for economic, political, and criminal threat reasons (Blalock, 1967), therefore an interaction variable was created to record the relationship between being African American and being in a state with a black lynching rate. Based on findings that whites who lived in counties with high proportions of blacks perceived them as a threat to their dominance (Corzine, Creech, & Corzine

1983; Reed 1972), it is also important to examine the impact of being an African

American in areas with high lynching rates. More information about how variables are measured is in Table 2.

Control Variables

Control variables include serious violent crime and witness crime. Two dichotomous variables were created, “serious violent crime” and “witness crime.” Serious violent crimes include the variables murder, manslaughter, attempted murder, accessory to murder, sexual assault, child sex abuse, and child abuse. Witness crimes include the variables sexual assault, robbery, attempted murder, child sexual assault, assault, and kidnapping. This is based on research that has frequently emphasized that the primary causes of wrongful convictions are crime specific (Gross & Shaffer, 2012). The factors that tend to cause wrongful convictions in rape cases are different from those that cause wrongful convictions in murder cases, and different from drug cases or victimless crime cases. For example, mistaken witness identification may be more prevalent in crimes where the victim lives, as opposed to murder. 55

Procedures

After coding the variables in the Excel spreadsheet from the NRE, the statistical program R was used to run logistic regression models. A generalized linear model was chosen to predict the probability of experiencing six different contributors to wrongful convictions. After fitting the model using Nagelkerke’s pseudo R-squared, the intercepts and coefficients were used to calculate predicted probabilities for experiencing contributing factors of wrongful conviction. Ohio, Kentucky, and Mississippi were chosen because of their historical and cultural differences. Ohio’s lynching rate for whites is 0.21 and 0.336 for blacks, Kentucky’s lynching rates for whites and blacks are

2.75 and 6.2 respectively, and Mississippi’s lynching rate for whites is 2.34, while the lynching rate for blacks is 29.99. While each state has a past of lynchings, Ohio is in the north, was never a slave state, and has a significantly lower lynching rate than the other two states. Kentucky was historically a part of the Union although it was a slave state and is technically considered a southern state now. Mississippi is in the deep south and always has been and has an extremely high lynching rate. To create baseline probabilities, Model 2 was used to calculate the probability based on race and location

(north or south). This is to be certain that the increased probabilities calculated were due to the lynching rates in those states.

56

Chapter 5: Analysis and Results

This chapter describes the analysis performed in this study and will present the results. First, a correlation matrix is presented, highlighting any significant correlations between the dependent and independent variables. Next, the results of logistic regression models are presented. Models for official misconduct, eyewitness misidentification, and perjury and false accusation are discussed more in-depth than the other contributor models, as they are the focus of this research. Finally, predicted probability tables are presented and discussed.

Analysis

Table 3 (below) reports a correlation matrix of the variables used in this study. N=

2141 and all correlations > .042 are significant at the .05 level or better in a one tailed test. Within the box are the correlations of the dependent variables and each independent variable. Notably, most independent variables are negatively correlated with official misconduct, except for African American. Mistaken Eyewitness Identification is positively correlated with African American and Hispanics. Crime variables, sentence severity, DNA, location, and lynching rates are all significantly correlated with most dependent variables. To further examine the relationship between these correlations, logistic regression was conducted and displayed in the tables below. 57

Table 3

Correlation Matrix 58

Official Misconduct Logistic Regression Model

Table 4 (below) reports logistic regression models that predict the probability of experiencing official misconduct. Model 1 explains .07 of the variance and shows that year of conviction and age at the time of crime are negatively related and being black is positively related to experiencing official misconduct. Model 2 increases the amount of variance explained from .07 to .17, showing that after controlling for crime and factoring in sentence severity and DNA, being black is no longer significant. sentence severity and a southern location is positively related, and DNA is negatively related to the likelihood of experiencing official misconduct. Model 3 shows that the lynching rate of whites is negatively related, the lynching rate of blacks is positively related, and the lynching rate of blacks in the south is negatively related to the likelihood of experiencing official misconduct. Model 3 and Model 4 both explain .21 of the variance. In the final model, the interaction variable created for being black and in a state with a black lynching rate is not significant. However, age and year of conviction remain significant, while race does not. Southern location, sentence severity, DNA, and lynching rate of blacks remain positively significant, while serious violent crime, lynching rate of whites, and lynching rate of blacks in the south remain negatively related. Most notably, the lynching rate of blacks remains significant with a coefficient of .562.

59

Table 4

Official Misconduct Model

60

Mistaken Witness Identification Logistic Regression Model

Table 5 (below) reports logistic regression models that predict the probability of experiencing mistaken witness identification. Model 1 explains .14 of the variance. It shows that year of conviction and age at the time of crime are negatively related, and being African American, Hispanic, or Other is positively related to experiencing mistaken witness identification. Notably, the coefficients for African American and

Hispanic are .0895 and 1.03, respectively. Model 2 increases the variance explained to

.32. It shows that after controlling for crime and factoring in sentence severity, DNA, and location, the variables significant in Model 1 remain significant in Model 2. Crime, sentence severity, DNA, and a southern location are positively related as well. Model 3, with .34 of variance explained, shows that the lynching rate of whites is the only significant factor that was added to this model, with a coefficient of -0.063. Model 3 and

Model 4 have the same variance explained .34. In the final model, the interaction variable created for being black and in a state with a black lynching rate is not significant.

However, age, year of conviction, race, crime, sentence severity, and location remain significant throughout every model. This table demonstrates that mistaken witness identification may be more related to race and crime factors that do not have to do with cultural ideologies.

61

Table 5

Mistaken Witness Identification Model

62

Perjury or False Accusation Logistic Regression Model

Table 6 (below) reports a logistic regression model that predicts the probability of experiencing perjury or false accusation. Model 1 explains only .02 of the variance but shows that year of conviction is strongly negatively related and being Asian is slightly negatively related to experiencing official misconduct. Model 2 increases the amount of variance explained from .02 to .08, showing that after controlling for crime and factoring in sentence severity and DNA, year of conviction is no longer significant, but being

Asian remains slightly significant. Sentence severity and a serious violent crime show strong significance and are positively related, while DNA and a southern location show strong significance but are negatively related to the likelihood of experiencing official misconduct. Models 3 and 4 explain only .14 of the variance. When including the lynching variables, serious violent crime, sentence severity, and DNA remain significant.

However, it is worth mentioning that the variables regarding the lynching rate of blacks were significant in this model. The lynching rate of blacks is positively related at .284

(Model 3) and .294 (Model 4). The lynching rate of blacks in the south is negatively related at -.282 in both models. The lynching rate for whites remains insignificant in both

Model 3 and Model 4.

63

Table 6

Perjury and False Accusation Model

64

Logistic Regression Models for Remaining Variables

Table 7 (below) reports logistic regression models that predict the probability of experiencing the final three dependent variables (False or Misleading Forensic Evidence,

False Confession, and Inadequate Legal Defense). Below are the full models, each with relatively low variance explained (Nagelkerke’s Pseudo R-squared remained less than .2).

While this research aimed to discover how lynching rates impacted contributing factors to wrongful conviction, these three contributors were not as theoretically important to this research. As mentioned above, this research is interested in factors that involve perceived criminality, such as official misconduct, perjury or false accusation, and mistaken witness identification. Other factors, such as inadequate legal defense may result from other factors that do not include perceived criminality. However, it is worth mentioning that the lynching rate of blacks was significant in the False or Misleading Forensic Evidence

Model. In the FMFE Model, lynching rate of blacks was negatively related at -.28 and the lynching rate of blacks in the south was positively related at .245.

65

Table 7

Remaining Variables Model

66

Results

As mentioned previously, this research aimed to answer the following questions:

(1) How do contributors to wrongful conviction that involve perceived criminality

(official misconduct, eyewitness misidentification, and perjury and false accusation) differ between black and white male exonerees in areas that have a strong legacy of lynching? And (2) How do contributors to wrongful conviction that involve perceived criminality (official misconduct, eyewitness misidentification, and perjury and false accusation) differ between black male exonerees in areas that have a strong legacy of lynching versus areas that do not? Based on previous literature and racial threat theory, the following hypotheses were formed: (H1) Contributors that involve the assumption of criminality (eyewitness misidentification, perjury and false accusation, official misconduct) will be more likely in the areas where lynchings were more prevalent, and (H2) more common among black men compared to white men in those areas. The following three charts show predicted probabilities for a man who in the year of 1995: is

25 years of age, has been convicted of a serious violent crime, was given a sentence of 30 years, with DNA as a significant factor in his conviction. Figure 1 shows the predicted probability of experiencing official misconduct, Figure 2 shows the predicted probability of experiencing mistaken witness identification, and Figure 3 shows the predicted probability of experiencing perjury or false accusation. These probabilities are determined by defendant race and geographic location.

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Predicted Probability of Official Misconduct

Official Misconduct, as defined by the NRE, is when police, prosecutors, or other government officials significantly abused their authority or the judicial process in a manner that contributed to the exoneree’s conviction (2020). As formerly mentioned, official misconduct is more common in convictions that lead to exonerations of black defendants than in those with white defendants (Gross et al., 2017). With that information, it is expected that probability of experiencing official misconduct would be greater among black exonerees than white exonerees in this dataset and, as shown in

Figure 1, this is the case. However, that disparity increases as location changes. These results show support for H1 and H2.

In support for H1, the likelihood of experiencing official misconduct increases for both black and white exonerees as you move south, which coincides with the lynching rate increasing. However, the likelihood increases significantly more for black exonerees than it does for white exonerees. The probability for whites varies three percent, while the probability for blacks varies ten percent. As shown below, an African American man is more likely to experience official misconduct in Mississippi (65%) than in Ohio

(55%). Further, in support for H2, in all three states African American men are more likely than whites to experience official misconduct. In Kentucky, a black man is 7% more likely than a white man to experience official misconduct, even though they are the same age and committed the same crime in the same year.

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Figure 1

69

Predicted Probability of Mistaken Witness Identification

Mistaken Witness Identification is present when at least one witness mistakenly identified the exoneree as a person the witness saw commit the crime (NRE, 2020). The rate of eyewitness error is much higher for innocent black defendants (79%) than for white defendants (51%), and black men with stereotypical features are most vulnerable to eyewitness error (Kleider-Offutt et al., 2017). Therefore, it is expected that African

American men would be more likely than white men to experience eyewitness misidentification in this dataset, just like what was expected of official misconduct trends. In Figure 2 (below), black men in each state are more likely to experience mistaken witness identification than their white counterparts. Additionally, the likelihood increases when moving south geographically and where lynching rates increase. These results show support for H1 and H2.

In support for H1, an African American man is more likely to experience mistaken witness identification in Kentucky (85%) and Mississippi (89%) than he is in

Ohio (78%). While the probability for whites varies more between states than for blacks, the likelihood of blacks experiencing mistaken witness identification remains higher, which supports research from Kleider-Offutt et al. (2017), mentioned above. For example, a black man in Ohio (a state with little lynching history) is more likely to experience mistaken witness identification than a white man is in Mississippi (a state with a higher lynching history). In other words, H1 is supported because the lowest likelihood of mistaken witness identification in cases involving black men (78% for a black man in Ohio) is greater than any likelihood for white counterparts, regardless of 70

their state. In support for H2, African American men remain significantly more likely to experience mistaken witness identification in their state than white men are, even after controlling for age, year of conviction, and crime committed.

Figure 2

71

Predicted Probability of Perjury or False Accusation

Perjury or false accusation occurs when a person other than the exoneree committed perjury by making a false statement under oath that incriminated the exoneree in the crime for which the individual was later exonerated, or made a similar unsworn statement that would have been perjury if made under oath (NRE, 2020). Although perjury and false accusation does not impact African Americans at a disparate rate, it is the number one contributing factor in exoneration data from the NRE, presenting in 58% of the cases (2020). Because African Americans are disproportionately represented among exonerees (Smith & Hattery, 2011), one can expect that perjury and false accusation may impact cases of African American men who have been wrongfully convicted. Perjury or false accusation occurs based on perceived criminality because it involves someone stating someone else committed a crime; therefore, it is important to include this contributor in this discussion. Figure 3 (below) is based on the model previously shown in Table 5 (with a 14% variance explained). Although model-fit is weak, it is important to address the results as they do partly support H1 and do not support H2.

In support for H1, the likelihood for white men to experience perjury or false accusation increases as you move south geographically (and the lynching rate increases), with a likelihood of 57% in Ohio and 63% in Mississippi. However, the likelihood for

African American men to experience perjury or false accusation decrease as you move south geographically, which does not support H1. This is most likely due to the lynching rate of blacks in the south being negatively related to the likelihood of experiencing 72

perjury or false accusation in this model. In other words, when the lynching rate of blacks increased, the likelihood of experiencing perjury or false accusation decreased. In dispute of H2, perjury and false accusation is more common among white men compared to black men in each state. For example, in Kentucky a white man is more likely to experience perjury or false accusation (56%) than his black counterpart at 52%. One reason this may have occurred is for methodological reasons. Perjury and false accusation are more likely to occur in federal exoneration cases than in state exoneration cases

(Gross & Jackson, 2015). As mentioned above, this study eliminated all federal cases from the sample so that the only cases were state level. The elimination of federal cases may account for these results.

Figure 3

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Summary

The results show that African American men are more likely to experience official misconduct and mistaken witness identification in states with greater histories of lynching than they are in states with weaker lynching histories. Further, they are more likely to experience these contributors than their white male counterparts in those same states. These findings support previous research surrounding racial threat theory, lynching, and perceived black criminality.

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Chapter 6: Discussion and Conclusion

The results of this research indicate that African American men are more likely to experience official misconduct and mistaken witness identification in areas that have stronger histories of lynchings. A brief discussion of the present research findings and their implications are below. Limitations, policy recommendations, and directions for future research are also discussed.

Theoretical Implications

Historically, blacks have been viewed as more criminal or more threatening than any other race (Smith, 1991; Sweeney & Haney 1992; Rector, Bagby & Nicholson 1993;

Duncan 1976; Sagar & Schofield 1980). Research suggests that lynchings have contributed to perceived black criminal threat and, further, a criminal threat to whites

(Durso & Jacobs, 2013; King et al., 2009; Stewart et al., 2018; Mears et al., 2019). The assumption of black criminality in the United States could explain why black men are subjected to higher rates of eyewitness error and official misconduct via police as these contributors may be indicative of perceived criminality. Therefore, in this research lynching rates were used as a measure of perceived black criminality. Lynchings were used to control recently freed slaves, reinforce white superiority, and impose social control over the minority group (Ayers 1984; Dollard 1957; Tolnay & Beck, 1996).

Racial Threat Theory, specifically the threat of black crime hypothesis, argues that majority groups impose mechanisms of social control over minority groups, whose populations are growing to protect their existing power (Blalock, 1967). Further, whites who lived in counties with high proportions of blacks perceived them as a threat to their 75

dominance (Corzine, Creech, & Corzine 1983; Reed 1972). This is one of the reasons lynchings were so prevalent in the South, as the white population felt threatened by the newly emancipated slaves, politically, economically, and criminally. Threat theorists have used it to explain forms of social control such as arrest rates (Brown & Warner

1992; Liska & Chamlin 1984; Liska, Chamlin & Reed 1985), incarceration rates (Myers

1990; Tittle & Curran, 1988), and executions (Phillips, 1987). Wrongful convictions are a form of social control imposed on individuals, as they involve arrest and incarceration of innocent people. This research supports racial threat theory, as African Americans are disproportionately represented among those that are wrongfully convicted, and further, black men are more likely to experience certain contributors to wrongful conviction, such as official misconduct and mistaken witness identification, particularly in areas with a strong legacy of lynching .

In a meta-analysis conducted by Mears et al., (2019), it was found that whites who live in communities with a greater historical legacy of racial hostility, as reflected by higher levels of lynchings, were more likely to view blacks as a threat. The results from this research support that claim. Official misconduct and mistaken witness identification may involve the bias of perceived criminality. For police and prosecutors, that might be a tunnel vision approach to investigating. As mentioned previously, the lynching rate in this research symbolizes racial hostility and perceived black criminality. Therefore, if black people are perceived as a threat, this may increase the likelihood for official misconduct by the police. The results of the present research support this and show that a black man was more likely than his white counterpart to experience official misconduct, 76

and that likelihood increased as the state’s lynching rate increased. For victims or witnesses, there may be implicit bias resulting in misidentification during a lineup. This is supported by research that found that white Americans are more likely to misidentify black men with stereotypical features (Kleider-Offutt et al., 2017). In other words, if a victim of a crime has implicit bias or lives in a state with a culture of racial hostility and perceived black criminality, they may be more likely to misidentify a black man. The present research found that in areas with higher lynching rates, African American men are more likely to experience contributors to wrongful conviction that involve perceived criminality. In Kentucky and Mississippi (states with greater lynching histories), African

American men are more likely to experience official misconduct and mistaken identification than they are in Ohio (a state with little lynching history). These results support both hypotheses that a culture of lynching and racial hostility impact the likelihood of black men experiencing certain contributors to wrongful conviction that involve perceived criminality.

Limitations

Studying wrongful convictions presents limitations regardless of methodology because, as Gross and O’Brien (2008) pointed out, they are inherently hidden from view. A limitation to this research is that it is focused on exonerations, not wrongful convictions, because the only false convictions we know about are those that end in exoneration. Because this dataset relies entirely on publicly available information, there are cases of exoneration that are unknown to the NRE researchers and there are wrongful convictions that have yet to be identified. For example, many wrongful misdemeanor 77

convictions may go undetected because of the rate of guilty pleas in our criminal justice system. Another limitation of secondary data is that the dataset may not answer the question as precisely as primary data could (Vartanian, 2010). For example, the datasets being used were not designed for this research exclusively. If they had been, specific information could have been collected to answer the research questions. However, as mentioned above, the datasets chosen are the best measures available for wrongful convictions and lynchings. Additionally, this secondary data analysis presents limitations such as not being able to control sample size, the variables that are measured, or how those variables are defined (Vartanian, 2010). Studying lynchings, regardless of the dataset used, also presents limitations because many lynchings were not documented or recorded. Different databases define lynchings differently or examine a different period, so it is difficult to determine which lynching database is the “best.” However, the

Tuskegee Institute Archives dataset provides the information needed and is publicly available, making it useful for this study.

Policy Implications and Future Research

This research addresses problems within the criminal justice system that affect thousands of lives daily. As mentioned previously, the NRE reports over 2,500 people have been wrongfully convicted in the United States, the majority of whom are African

American men. Racial bias, such as perceived criminality, that impacts official misconduct in policing and eyewitness error are contributors to wrongful conviction that disproportionately impact African American men (Gross et al., 2017). Historically,

African Americans have been subjected to differential treatment under the law and this 78

study is evidence that this continues. The first step in combating these inequalities is implementing policies that have been known to prevent the contributing factors from occurring. It is essential that all policies established to prevent eyewitness error and official misconduct are implemented in states with a history of racial hostility (lynching) against African Americans. The findings suggest that black men in these areas are more likely to experience contributors to wrongful conviction that involve perceived criminality, therefore there need to be safeguards in place to combat that.

Preventing Official Misconduct

To prevent official misconduct, Kassin et al. (2010) recommend recording the entirety of the interrogation to provide an accurate account of what led to incriminating statements, as well as discourage interrogators from using coercive tactics. These recommendations have been backed by the American Bar Association, The Justice

Project, and The Innocence Project. As mentioned previously, interrogations begin with the presumption that the subject is guilty and the officers are there to extract a confession

(Leo, 2008). This is consistent with the findings from the findings from this research.

The findings support that this presumption of guilt is more likely in cases of African

American men, particularly in areas with a strong legacy of lynching. Therefore, to combat this disparity, the entirety of interrogations should be recorded. Recording interrogations can prevent coercion and official misconduct that leads to false confession.

Additionally, if racial bias was a factor in bringing the suspect into interrogation, recording the entire interrogation can serve as a safeguard to prevent that from contributing to the wrongful conviction of an innocent person. 79

Preventing Mistaken Witness Identification

To prevent mistaken witness identification, Wells et al. (2020) recommend several policy changes that have also been supported by the Innocence Project. The officer should interview witnesses to document their description of the suspect, their viewing conditions and attention during the crime, and any claims of prior familiarity with the culprit. Just as Kassin et al. (2010) recommends that interrogations be recorded,

Wells et al. (2020) recommends that line-ups and interviews surrounding witness statements be recorded. These recommendations are important because the findings from this research suggest that African Americans are more likely to experience mistaken witness identification in areas with stronger legacies of lynchings, which represent a measure of perceived racial threat. Therefore, recording and conducting thorough witness statements can identify biases that may be resulting in misidentifying a black man. This is consistent with research from a meta-analysis conducted by Kleider-Offutt et al. (2017), that found that misidentifications of black men as perpetrators of crime may be influenced by whether they have stereotypical black facial features, such as darker skin, a wider nose and fuller lips. If stereotypes are influencing witness identifications, recording witness statements, and implementing lineup policies could prevent that from contributing to the conviction of an innocent person.

As mentioned in Chapter 2, lineups present a great possibility for eyewitness error. To address this, Wells and colleagues suggest double-blind lineups, lineup filler guidelines, and witness instructions (2020). Double-blind lineups mean that neither the administrator nor the witness know who the suspect is. This will prevent law enforcement 80

officers from confirming a witness’s identification, which often inflates their confidence even if they are incorrect (Gould & Leo, 2010). Another problem is that the lineups are often set up so that the suspect is the only person who presents a certain height, hair color, and complexion, leading the witness to choose an individual that looks the most like the suspect instead of ensuring that the individual actually did it (Wells, 2008).

Therefore, there should be guidelines in place to prevent the suspect from standing out in the lineup.

Witnesses should also be instructed that the perpetrator may or may not be present in the lineup and they should not feel compelled to make an identification. These recommendations stem from a substantial body of empirical research showing that witnesses are less likely to mistakenly identify an innocent suspect if they are first warned that the culprit may not be present (Wells, 2020). The findings in this research suggest that African American males are more likely to be mistakenly identified, especially in states with strong legacies of lynching. Establishing safeguards can help combat personal biases, such as perceived black criminality, that is found in this research to be prevalent in exoneration cases of African American men in certain areas.

Incorporating these policies will combat these disparities that lead to mistaken witness identification at disparate rates for African American men.

Addressing Systemic Racism

One way to create these changes is through establishing innocence organizations that work to implement evidence-based policies as well as exonerating innocent people.

Therefore, it is necessary to establish innocence organizations in Alabama, Arkansas, 81

South Carolina, and Tennessee because they do not have an organization currently

(Norris et al., 2020). Innocence projects should be established in these states because previous research has found that wrongful convictions disproportionately impact African

Americans (Gross et al., 2017). Further, these states have a higher legacy of racial hostility, as reflected by lynching rates in this research. Because this study found that

African Americans are more likely to experience official misconduct and eyewitness misidentification in states with stronger legacies of lynching, there should be innocence projects established in these states to address this problem. However, addressing implicit bias and social and economic inequalities in communities of color are also necessary to reduce wrongful convictions among African American men.

The Center for Policing Equity (2020) suggests raising awareness of implicit bias among police forces and community leaders. One way to do this is through an Implicit

Association Test that is designed to measure the strength between stereotypical associations. In other words, this test measures the strength of association between concepts (e.g., black people) and evaluations (e.g., good, bad), or stereotypes (e.g., athletic). The IAT can reveal biases that are unknown to the person taking the test and may even go against what they consciously believe. Strategies can be implemented to prevent the implicit bias from affecting one’s decisions. The results of this research show that African Americans are more likely to experience contributors to wrongful conviction that involve perceived criminality in areas with strong legacies of lynching. If residents in those areas are educated of their implicit bias, they can actively try to counteract this bias. 82

Further, if police officers uncover biases that black people are criminal, their department can work to counteract these biases that could contribute to wrongful convictions.

One strategy could involve police departments having their data analyzed with a focus on officer interaction to identify any disparities within their department. For example, The Las Vegas Police Department analyzed their use of force data and identified a specific interaction that resulted in excessive force: foot pursuits with young men of color. A change in their policy was made to combat this: one officer pursues the suspect; another puts the handcuffs on them. This disrupts strong emotions felt by the police officer and the suspect which could lead to violence. Another suggestion is for law enforcement officers to build relationships and trust within the community they serve through hiring from that community and being present at community events. If police officers spend time getting to know the community they serve, the stereotypes and biases they have may diminish. As mentioned above, often police misconduct occurs because of the presumption of criminality. If biases are addressed within departments, police officers may be less likely to assume criminality of African Americans, which could result in fewer wrongful convictions. This research suggests that African Americans are more likely to experience official misconduct in areas with a strong legacy of lynching, which reflects perceived criminality. Addressing the presumption of criminality in these areas could help to reduce wrongful convictions of African American men.

Future Research

However, addressing the socioeconomic inequality that communities of color face would prevent some of the above suggestions from being needed. Accordingly, efforts to 83

improve fairness within the justice system should occur in conjunction with efforts to improve the life chances of all racial and ethnic groups (Mears, 2016). Poor communities of color are more likely to be heavily patrolled (Gross, 2007), and people of color are three times more likely to be searched when pulled over (Eith & Durose, 2011). This increases the likelihood of finding contraband that leads to an arrest, leaving them in the position to plead guilty or stay in jail because they cannot afford to make bail. Poor communities often are represented by public defenders, increasing the likelihood of ineffective assistance of counsel. Defense counsel is there to protect their client from witness misidentification and official misconduct; however, they often fail to do so. This research shows that these contributors to wrongful conviction are more common among black men in areas with stronger legacies of lynching. Therefore, addressing socioeconomic inequality could prevent this disparity and reduce the likelihood of wrongful convictions, especially in communities of color. In combination, disadvantaged areas and politically conservative views enable stereotypical views of blacks as criminals to flourish (Mears, 2019; Hoschild, 2016). Therefore, future research should focus on exoneree socioeconomic status at the time of arrest and how social capital, in combination with culture, impacts the likelihood of experiencing certain contributors to wrongful conviction.

Conclusion

Wrongful convictions question the integrity of the justice system in the United

States. Like other facets of the criminal justice system, wrongful convictions disproportionately affect African American men (Smith & Hattery, 2011). As discussed 84

in Chapter 3, perceived black criminality has been ingrained in American culture for generations. This could explain why states with greater legacies of lynching have residents that perceive blacks as more criminal (Mears et al., 2019). Therefore, this research aimed to determine if that perception of criminality impacts which contributors to wrongful conviction that African Americans face. Official misconduct and mistaken witness identification are two contributors that involve the perception of criminality. The results from the present research confirm that blacks are more likely than whites to experience contributors that involve perceived criminality (official misconduct and eyewitness identification) in states with greater legacies of lynching. Further, blacks that live in states with greater legacies of lynching are more likely to experience these contributors than blacks that live in states with minimal lynching history. While studying wrongful convictions presents limitations because of their hidden nature, this research discovered another layer of disparity within the criminal justice system that disproportionately impacts black men. If perceived black criminality continues to infiltrate the criminal justice system and impede the futures of African American men, the cycle of wrongful convictions will continue. More research is needed to further explore the nature of the relationship between perceived criminality and wrongful convictions.

85

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