Opinion: Racial bias and wrongful convictions 

By Amy Sings In The Timber and Randi Mattox
Montana Innocence Project

Editor's Note: This article was submitted to coincide with Black History Month, which was celebrated in February. The Montana Lawyer welcomes member perspectives on issues that relate to the practice of law. Email editor@montanabar.org for information on submitting a letter to the editor or op-ed.

Innocence work is evolving. The drivers of wrongful convictions are not changing. Rather, advocates around the country are beginning to recognize and acknowledge how racial equity plays a role in ending unjust incarceration in our criminal legal system. Considering who is most often wrongfully convicted and the motivations behind locking up innocent people, this evolution in thought about the intersection of innocence work and racial justice is a necessary one.
According to the Innocence Project’s 2021 report titled “How Racial Bias Contributes to Wrongful Conviction,” two-thirds of the Innocence Project’s exonerees are Black, indigenous, and people of color (BIPOC) with 58% being Black. The same report states Black people account for nearly 50% of all exonerees in the country. According to the Death Penalty Information Center, since 1973, over 185 people have been exonerated from death row - 100 of them are Black. It is evident that racial justice should not be viewed as accompanying innocence advocacy, but instead as an intrinsic aspect of the work.
Example: False Allegations
This is an important acknowledgment because it impacts the approach to freeing innocent people and remediating the causes of wrongful convictions. For example: false allegations. A leading cause of wrongful convictions, false allegations contribute to more than half of all wrongful convictions that have led to exonerations since 1989, according to the National Registry of Exonerations. False allegations have a different historical meaning for innocent people of color, and especially innocent Black people. It is necessary to know the historical roots to fully understand why false allegations against Black people carry so much weight, and to promote meaningful remedies.
There are countless examples, from Emmett Till, who was murdered in 1955 based on a false allegation that he flirted with a White woman, to Brian Banks who was wrongfully convicted of rape in 2002 based on a false allegation. The 1985 wrongful conviction of Walter McMillian, whose story is famously told in Brian Stevenson’s “Just Mercy: A Story of Justice and Redemption,” entailed a false allegation against a Black man for the murder of a White woman. The false allegation in Walter’s case beat out six alibi witnesses. These cases exemplify the widely held stereotype that Black people are inherently criminal.
Martenzie Johnson put it simply in an article titled “Being black in a world where white lies matter” when he said, “We’ve always been told this is what Black men do.” Johnson draws the connection between current attitudes about Black men perpetrating violence to “The Birth of a Nation,” a film where the Ku Klux Klan is celebrated for lynching a Black man after a White woman jumps off a cliff to avoid the risk of being raped by him. “The Birth of a Nation” was screened at the White House in 1915. Although it is more than 100 years old, it systematized Black men as violent, and we embrace its message every time we meet false allegations against Black people with unwavering support. Johnson goes on to cite other examples that have cemented Black men as violent in our collective conscious and makes the case for why false allegations against Black men are seemingly easy to make.
If we look at drivers of wrongful convictions as impacting all innocent people the same way, then we will miss the opportunity to reduce the impact of wrongful convictions on the populations it ensnares the most. Combatting false allegations requires changing societal attitudes about the inherent guilt of an entire population of people. Without looking at the issue through a racial justice lens, efforts to reduce false allegations would miss the mark.
Example: Official Misconduct
Official misconduct is another innocence issue that demands to be examined through a racial justice lens. Official misconduct includes behaviors like witness tampering, misconduct in interrogations, fabricating evidence, concealing exculpatory evidence, and misconduct at trial. According to a September 2020 report by the National Registry of Exonerations, officials committed misconduct in 35% of cases that led to exonerations since 1989. The report found that exonerated Black people were most likely to be victims of official misconduct, followed by Hispanic people, especially for cases involving drug crimes, murder, and capital offenses.
One of the most famous examples of official misconduct occurred in the Central Park Five case. A white woman was jogging in New York City’s Central Park when she was attacked and raped. Five Black and Latino teenagers ranging from ages 14 to 16 emerged as the accused. Coercive tactics including exhaustion, threatening violence, and blatant lies were used to coerce confessions from the teens. Their coerced confessions did not match the crime, and none of their DNA was consistent with the DNA from the crime scene. They were convicted nonetheless.
Coercion is a psychological tool that does not discriminate based on race; however, stereotypes about BIPOC and criminality can increase pressure in an interrogation room. The interrogator may be informed by the stereotype that BIPOC commit more crimes. The person of color being interrogated is likely highly aware of the stereotypes leveled against them and the reality of the treatment they will receive in the criminal legal system. Adequately advocating for an individual facing these barriers or taking steps to prevent instances of official misconduct altogether requires an understanding of how official misconduct, like deceptive interrogations, are uniquely experienced by innocent BIPOC.
Other innocence issues that require a specific understanding of how they impact BIPOC include the following: bias-motivated policing and prosecuting; cross-racial witness misidentification; the presumption of guilt; all-white juries; cash bail; private prisons; biased policing tools and algorithms; unregulated databases; plea bargaining; exoneree compensation; and mass incarceration. 
In Montana, this conversation must extend to innocent indigenous peoples who are uniquely vulnerable to wrongful and unjust convictions. Montana Census and Department of Corrections data reveal that indigenous peoples comprise less than 7% of the state population but nearly 23% of the overall prison populations respectively. The data is even more damning for indigenous women who represent a staggering 34% of the Montana Women’s Prison. The Montana Innocence Project’s client data reflect numbers that mirror state data with indigenous applicants representing an annual average of 28% of its total applications for legal services. 
Innocence advocacy on behalf of indigenous peoples in Montana requires a racial justice lens for the previously mentioned innocence issues in addition to over-policing and over-criminalization of indigenous peoples and communities, cultural and geographic barriers leading to technical violations, jurisdictional complexities, and the criminalization of indigenous women’s survival strategies.
There is a powerful movement to more openly identify the responsibility of innocence organizations, and other lawyers and advocates who work on wrongful convictions, to examine innocence issues with racial equity in mind. The Innocence Project was inspired by the advent of DNA testing and its ability to prove innocence in a society that, at the time, was largely skeptical that wrongful convictions occurred. Forensic science is still a necessary tool for post-conviction work, but the time is ripe to shift the conversation to meet both the calls of impacted communities and the demand for racial justice in our country. With the vast majority of exonerees belonging to minoritized racial groups, and nearly half of all exonerees being Black, the racial justice component of innocence advocacy must take a front seat.