Racial Bias in the Justice System

Nearly 70 percent of the 242 people exonerated by DNA testing to date are people of color. These exonerations have spotlighted racial bias in the criminal justice system and the need for reforms that address these inequalities. The Innocence Project in Print recently sat down with Christina Swarns, Director of the Criminal Justice Project, NAACP Legal Defense and Educational Fund, who said "priority one must be decriminalization of the black community."

Read the interview below.

Innocence Project in Print: Anyone can become a victim of wrongful conviction, but it happens most often to people of color. Why do you think this is so?

Christina Swarns: I think those numbers speak to the continuing public perception of a link between race and criminality. Because we are constantly barraged with media images of black people as criminals, it's easier for Americans to overlook evidence of innocence when they're confronted with a person of color than when they're
confronted with a white person.

IP: The Innocence Project pursues reforms that can prevent wrongful conviction. But it's much more difficult to apply a straightforward legislative "fix" for racism. How do you approach this, and how do you think we can do more?

CS: The Innocence Project is already doing some of this work by advocating for eyewitness identification reforms that can reduce the risk of cross-racial misidentifications. We need to get better policies and procedures cemented into police practices, and we need to be able to present evidence about the potentially distorting effect of identification procedures. We also need to make sure that people of color are not excluded from juries, and the Innocence Project could be advocating for more inclusive juries. The more difficult thing to reform is that mental connection between race and criminality.

IP: What are some current cases and initiatives you are pursuing?

CS: We hope that by exposing biased practices we'll force a change in policy. We're in the middle of developing a lawsuit that will expose differential treatment of people of color by a major city police department. We're actively litigating two death-penalty cases, both of which are in jurisdictions and counties in the South with entrenched cultural and racial biases. We're also litigating cases that challenge practices that keep black people off of juries, and, in one county, we have begun a project of educating the community about the importance of jury service.

IP: How does the Innocence Project's work help you in these efforts?

CS: The Innocence Project has given everybody - prosecutors included - reason for pause about what they're doing. You now have to wonder whether the case you are working on involves an innocent person. However, we also have to figure out how we can do better in cases without DNA, especially non-DNA cases where race is an issue, because those cases present a serious risk of wrongful conviction.

IP: People of color often lack the resources to hire top-notch defense attorneys, and they are outgunned by prosecutors who sometimes cross the line to secure convictions. What needs to be done to ensure that people of color have access to adequate defense?

CS: We need to create real and enforceable minimum standards for appointed counsel. People who are facing capital punishment need to have adequately trained, adequately funded, skilled lawyers who do all of the things that are laid out in the American Bar Association's guidelines. If you have the money to hire the lawyers and investigators and experts that you need, then the odds of receiving a death sentence are much, much lower. Unfortunately people of color are more likely to receive appointed
counsel because they are also more likely to be poor.

IP: Is criminal justice reform the next civil rights movement?

CS: Absolutely. For the African-American community, there are few things more tangible and immediately disruptive and damaging than the volume of black people that are swept into the criminal justice system and the collateral consequences that flow from incarceration. Do we need education? Certainly. Do we need to be able to vote? Absolutely. Do we need to have those rights equal and unfettered? Certainly true. But you have to be free to be able to do those things. Priority one must be the decriminalization of the black community.

IP: How have efforts to address racism in the criminal justice system evolved over the last several years? Are we still fighting the same battles, or has it shifted?

CS: The election of Barack Obama has thrown an interesting curveball into the conversation about race in general. First, we need to respond to the idea that this election means we're in a post-racial society, and that issues of race are no longer relevant. I invite you to walk through any criminal courthouse, jail or prison in this country and tell me that race is no longer relevant. We have to question whether the criminal justice policies we promote are actually keeping us safe. We have to talk about safety and community responsibility and engagement. The conversation is far more nuanced than it once was.

Read the Summer 2009 issue of The Innocence Project In Print.