MSU Law faculty members discuss racial disparities in criminal justice

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Photo courtesy of MSU Law

Around 70 Michigan State University College of Law alumni and guests joined a Zoom webinar on Thursday, February 11, to participate in a conversation about racial disparities in criminal justice and The National Registry of Exonerations (NRE). The discussion was shaped by questions submitted via live chat and in advance by participants, many of whom had previously worked on the NRE as students and fresh law school graduates.
Professor Barbara O’Brien is Editor-in-Chief of the NRE and Professor Catherine Grosso is an Editor. The Registry leadership informs the discourse on the inequalities in the US criminal justice process, and their collaborative scholarship explores the persistent role of race in jury selection.

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A BADGE OF HONOR

The National Registry of Exonerations serves as a virtual home for US exoneration stories. When government officials, attorneys, journalists, and incarcerated people need information on exonerations, they consult the Registry, which has become the impartial resource of record. But the scope of the project goes well beyond compiling cases and meticulously coding the searchable factors that led to wrongful convictions; every exoneree’s story is also told in a journalistic format.

A visitor to the NRE will learn where the process of justice broke down, and how that fractured system wounded human beings.

Faculty members at the three NRE partner institutions work alongside staff attorneys (many of them recent law school graduates), journalists, and researchers. They have documented over 3,000 exonerations stretching back to 1989, adding several new ones every week. The staff at the NRE connect with cases in myriad ways: from automatic Google alerts and manual web searches, from emails sent by attorneys in the close-knit world of innocence practice, and, most meaningfully, through direct outreach from exonerees themselves, who sometimes submit their own cases for inclusion.

According to Professor O’Brien, the overwhelming majority of men and women at the heart of these cases are eager to be included in the NRE. They see their addition as a badge of honor and often reach out to the NRE staff to learn their case numbers. When Professor O’Brien met an exoneree in person at a conference, she was struck by the emotional weight he placed on his NRE entry: “I told my lawyer it wasn’t real until it was in the Registry,” he told her.

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“THE SYSTEM HAS FAILED”

Although most convictions are for misdemeanor crimes, Professor O’Brien noted that rape and murder – “the serious, serious crimes” – are heavily overrepresented in exonerations, because innocence advocacy groups mostly work on behalf of people who face high-stakes outcomes, like the death penalty or life sentences in prison. ­­­­

“An exoneration is a big deal,” said Professor O’Brien, “in the sense that it’s proof that the system has failed in a massive, major way.”

Both professors are quick to point out that the NRE is an inherently skewed sample and doesn’t provide an accurate national cross-section of false convictions. The quality of Conviction Integrity Units (or Conviction Review Units) varies greatly between jurisdictions and states, and a lack of exonerations doesn’t necessarily indicate that the system is unusually perfect in that region. Rather, it could indicate the inability or unwillingness of the local justice system to find its own mistakes.

“Exoneration is our best proxy for a false conviction, but it’s not the same thing as a false conviction,” said Professor O’Brien. “Exonerations are just the false convictions that we know about.”

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THE CASE OF CURTIS FLOWERS

In their Faculty Speaker Series talk, Professor O’Brien discussed the Registry’s work through the lens of a case that seems comprised of a series of massive institutional failures: that of Curtis Flowers, a Black Mississippi man whose six trials for quadruple murder spanned over two decades. Mr. Flowers’ much-publicized trials showcased a staggering array of elements of prosecutorial misconduct. In 2020, the US Supreme Court overturned his murder convictions and he is a free man – and one of the NRE’s highest-profile exonerees.

As an extension of their research on racial bias in jury selection, Professors Grosso and O’Brien provided a statistical analysis of the prosecutorial exercise of preemptive strikes of qualified Black prospective jurors in Mr. Flowers’ trials. They provided compelling evidence of an aggressive pattern of racially discriminatory strikes by the prosecutor in his case, and their affidavit became a critical element of his 2017 motion for post-conviction relief. Though it was an unusual real-time confluence of their two lines of research (exonerations/innocence and jury selection), Professors Grosso and O’Brien worked exclusively on the jury selection aspect.

Though many convicted people and their advocates reach out to the NRE for assistance, Professors Grosso and O’Brien seldom work on an NRE case as it moves through the justice system, as they did with Mr. Flowers’ case. More often, their body of research provides supporting evidence to attorneys or innocence clinics.

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“WE MEASURE WHAT WE CARE ABOUT”

While exonerees come from all racial backgrounds, the cases documented in the NRE illustrate a clear pattern in US systems of justice: that innocent Black people face a much higher risk of wrongful conviction than innocent white people. Around 50% of the NRE exonerees are Black, though Black people comprise only 13% of the US population.

Professor Grosso described the reasons for unequal justice outcomes as “more subtle than we’re willing to see a lot of the time.”

“The system gives a leg up to white people in the same way that it makes things harder for Black people,” she said, “and people of color more generally.”

For example, she pointed out that young men in the community where she grew up received opportunities to exercise poor judgement without earning a criminal record – opportunities not equally available in communities of color. From variations in the availability of formal and informal diversion programs to dramatic differences in the quality of public education, their research demonstrates how these disparities play out in the justice system.

“The better we get at naming it, the better we get at identifying it – the better we can get at changing it,” said Professor Grosso. “It’s all our choice.”

Professor O’Brien reminded her listeners that meaningful advancements in justice must build on a foundation of solid recordkeeping and data analysis.

“You’ve got to collect data,” said Professor O’Brien. “We measure what we care about. And the state of the collection of data in the criminal justice system… it’s so patchy, and it’s so hard to get your hands on good data.”

While one might expect limited available data for older cases, researchers often struggle to obtain adequate information even for modern cases. Professor O’Brien decried the lack of basic information on the race of jurors and prospective jurors, and Professor Grosso pointed out that she’s seen transcripts of recent trials with sections missing altogether. Though they’ve proposed improvements in recordkeeping systems, no jurisdictions have taken them up on their suggestions yet.

Even basic information – like charging decisions – can be hard to come by. “You’d think that I could get a list of murders, reliably,” said Professor Grosso, shrugging.

“It’s kind of a big deal,” added Professor O’Brien, “you think someone would be keeping track.”

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“DON’T DEPEND ON OUR GUT”

Asked by the event participants about the future of justice reform, Professor Grosso praised the state of Washington’s development of new rules around jury strikes and was further encouraged by California’s recent adoption of their own strike policies based on Washington’s rules.

“Now you can’t say it was the way they were sitting, or what their attitude was – that’s not a good reason,” said Professor Grosso. “And you can’t say that it was because they have a family member in prison, because not everyone in our society might have an equal likelihood of that.”

“We can decide ahead of time to make decisions about who might not be a good juror that don’t depend on our gut,” she added.

Professor O’Brien also saw the potential for progress in recent shifts in public thinking regarding the role of prosecutorial discretion. “You can’t overstate the power of prosecutors in our system. Prosecutorial discretion is a bedrock feature,” she said.

She noted that recent candidates in local prosecutor races are less likely to align themselves with a traditional law-and-order platform. Instead, more prosecutors have adopted a reform-minded approach to prioritization and resource allocation, despite ongoing resistance from law enforcement agencies (and occasionally from line prosecutors as well).

Both professors called on members of their audience to participate in the process: as attorneys, as voters in prosecutorial races, and as leaders in their communities.

“Be engaged with helping us think about how to help our police be the police we want,” said Professor Grosso, “and our prosecutors be the prosecutors we want.”



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