Exonerees in the Era of Mass Incarceration (2/2)
In Part 2, Eddie Conway and Allison Flowers continue their discussion of exonerees and the plights they face in the U.S. criminal justice system.
EDDIE CONWAY, EXEC. PRODUCER, TRNN: Welcome to The Real News. I’m Eddie Conway, coming to you from Baltimore.
I have with me today an author, a lecturer, someone who has studied people being exonerated from their charges in prison. And I want you to join me in welcoming Alison Flowers.
ALISON FLOWERS, INVESTIGATIVE JOURNALIST: Thanks for having me.
CONWAY: OK. In your book Exoneree Diaries, you looked at four cases of people that was exonerated. One, how did you select them? And what drove you to write a book about this anyway?
FLOWERS: Yeah. So I decided to write this book when I was working at an innocence project. It was a journalism-based innocence project at Northwestern University. So I was actually on the front end of looking at wrongful conviction cases, investigating old cases, and trying to see if there was evidence that might potentially free innocent people.
And then one day I realize, well, what happens when those innocent people are freed? What sort of resources are in place? What’s the aftercare look like? And it turns out that there are a lot of gaps when it comes to working with exonerated prisoners as they’re leaving prison.
I selected the four because I, one, wanted to make sure that they were racially diverse. I thought that race is such a key part of the equation when it comes to wrongful convictions that I didn’t want to ignore that very important factor. And I also selected the cases I did and the people I did because of their cases, which show the many breakdowns in the criminal justice system and the contributing factors to wrongful convictions.
So in reading their stories–and they do read like stories, of course–but in reading their stories you become aware of how exactly an eyewitness misidentification happens, how a false confession happens, or bad forensic evidence. Official misconduct is seen in most of these cases, too. And those are the contributing factors to most exonerations, false accusations being the number one, of course.
And so that’s why I narrowed in on these four cases.
And, also, most of them hail from Cook County, which is where Chicago is. And in Cook County we have the highest number of exonerations in the country. So I sort of consider it the wrongful conviction capital of the country, which is why I focused on those four cases.
CONWAY: Oh. OK. I was going to ask you, just from your research and your study, do those cases represent the demographics across America of other cases like that? Because one of the things that happened is that I spent 44 years in the prison system myself and got exonerated, right? But through the process, of course, I’m always paying attention to other cases where they’re letting people out–you did 30 years, we’re wrong, sorry, you can go; you did 15 years; and it was like a drip, drip, drip across America, throughout the nation, but it was never, like, kind of like a flood. So it seemed like a small amount of people getting out, but in the prison system where I was, there was a tremendous amount of people that had innocent claims but had to fight years. I in fact had to fight after that for almost 32 years. So is this something that’s widespread across America?
FLOWERS: So there are only about 1,800 exonerations that we know about, and that’s due to the National Registry of Exonerations, which tries to track these as they happen, as they find out about them, all the way back to 1989.
But there’s really no way to know when someone has been exonerated. It’s not like the court sends out an advisory or a press release or any sort of thing like that. And so the researchers basically have to find out about these and research these exonerations themselves to add them to the registry. And there’s about one new one every three days in this country, and they find out about old exonerations all the time.
But to the larger question of how many innocent people are sitting in prison, you have mentioned you were aware of a lot of innocence claims going on. And I think that the number is much higher than the 2-5 percent that most studies cite. But even, let’s say, if it is 2-5 percent, there’s 2.3 million people locked up in this country, and that’s close to or exceeding 100,000 people who are likely innocent of the crimes that sent them there. And so–that’s not even touching, of course, on the larger question of mass incarceration, which I hope is one that this book addresses as well. But there’s no real way to know the number of wrongly convicted people that are languishing behind bars right now. But we do know that it’s at least tens of thousands of people.
CONWAY: And I would dare say hundreds of thousands, as you were saying, especially if it’s 2 to 5 percent.
What kind of compensation do they get? I mean, okay, you’ve snatched somebody up, you caused them to lose their livelihood most likely, you put them in prison, you put them in debt for lawyers, etc., etc., you disrupt the family, and then you discover that there was a wrongful conviction. What, if anything, is the states doing to compensate people and take care of them?
FLOWERS: Well, the states are not compensating uniformly and they’re not compensating enough. So when you leave prison as an exoneree, regardless of who you are or where you are, there are no immediate resources for you. You leave prison without a dime in your pocket. You don’t even have a bus pass. If you’re wearing the shoes that belong to the prison, you might get charged for those, right? And so your family has moved on, your spouse probably divorced you, your kids may not know who you are anymore. And your record is not automatically expunged, so it’s very hard to find work and move on with your life.
If you do happen to live in a state where you were wrongly convicted that does compensate–there are 30 states–and D.C.–do compensate exonerees, but many of those laws fall short. In Illinois, where I am from, the most you can get, regardless of how long you spent behind bars, is $200,000. In most of those states that do allow for some compensation, you actually have to petition a court for your innocence and for that compensation and prove your innocence all over again, which is actually a different standard of proof than it took to originally convict you, when all you had to do then was prove that you weren’t guilty, right? And now all of a sudden you have to prove your innocence to the court in order to get any measure of compensation. And that’s a very hard legal process to undertake, especially as someone who’s just trying to make your way in the world. And you’d be a better expert on that than I would, but that is what I hear many exonerees report.
So the lack of aftercare is a very serious thing.
I think what we need is some sort of annuity or uniform system state-to-state where exonerees for every year that they were wrongly convicted and serving time behind bars receive an amount for every year, and probably an amount for the rest of their lives. I think that is the appropriate way to deal with it.
Other states just sort of leave a question mark. They’ll compensate you, but you have to kind of lobby for the amount. And what makes you think that an exoneree can necessarily mount a political campaign and can take that on when you’re just trying to get medical and social services, maybe some counseling, dental, and a job?
So there’s a lot that needs to be looked at.
CONWAY: In Maryland, say, for instance, the highest you can get compensated for is, like, $330,000. So you can spend, 10, 20, 30, 40 years and that’s the cap. And the only way you can get a higher amount is then you have to follow all of those processes, go to the governor, get the secretary of the state, a number of higher officials to sign off on your absolute claim of innocence before you can be compensated. Most people don’t even have the time, the wherewithal, like you say, or the resources to do that.
In your research have you noticed the kind of impact exonerees have in returning to the community and the kind of treatment the community might even see? You know, OK, well, you’ve been gone for five years or ten years. They let you out. We don’t want you in this neighborhood; we think you might be a pedophile, or we think you still might’ve done it, or this or that. What kind of reaction towards exonerees and in the community have you noticed, if any?
FLOWERS: Well, I’d say that all the exonerees that I’ve talked to and the ones in my book really want to be a part of their communities. And many have succeeded in doing that, even starting their own programs and that sort of thing.
But they do live behind a wall of suspicion for the rest of their lives because there’s not this, like, clear proclamation of innocence, unless you live in a state where you can acquire that, which, again, is very difficult to do. Then basically you’re released because your conviction was vacated because the evidence no longer stood or new evidence was raised, right? But there’s still sort of a gray area, I think, not in the exonerees’ minds or in my mind, but in society’s mind, in the community’s mind. So they do sort of experience a lot of suspicion and skepticism around the circumstances that led to their release. Like, well, did you just beat your case? Was there a legal technicality? Or maybe you didn’t commit this crime but you committed some other crime.
And I think it just kind of speaks to the putative mindset that a lot of Americans have. You know, even if that were true, a lot of parolees are leaving prison with intentions of rebuilding their lives. But when that’s the reception that you get, along with a lack of resources, then you can very much understand why someone can fall easily into a life of crime again. Or, for some exonerees, surviving is so difficult–. We had an exoneree in Illinois who is actually part of the reason why the death penalty ended in Illinois, and a few years later he was picked up for stealing a bar of soap or something like that. And so, until we really care for people leaving prison, whether you’re an exoneree or a parolee, I think that we’re going to see repercussions of that, especially because of how they’re treated in their communities.
CONWAY: And in most cases it’s–and I heard you say “a life of crime” again, which I looked at and I said, well, okay, most of the time these exonerees really wasn’t engaged in a life of crime in the beginning, but, as you explained, the conditions and being ostracized or alienated in the community have forced people–you can no longer get a job because you got that felony; even though you’ve been exonerated, it’s on your record you’ve been locked up; so on, so on. And it actually creates criminals in some cases in people that might would have been innocent. Well, but still there’s only, like, a small amount, like you say, of people that’s flooding out of the prison system that’s exonerees. Most of the people come out of the prison system have been convicted, served their time, returned. Eighty percent of the people return back to the community. Who are you writing this book for and why?
FLOWERS: Well, I think our national attention right now is on the flaws of the criminal justice system. We saw that with Making a Murderer and its popularity. And I think a lot of people were shocked that these mistakes and the misconduct that was occurring in Wisconsin around Stephen Avery’s case, they were shocked to see that behavior. But when I was watching that series, I actually thought, well, this just looks like all the exonerees in my book, this looks like all the cases that I’ve seen. This is actually very common. This isn’t exceptional in any way. I guess what’s exceptional is the fact that people are starting to pay attention to it. So I do hope that a larger audience can identify with this book.
The other thing, too, is I think when you focus on issues of innocence, people care a lot more about what happens to innocent prisoners than what happens to guilty prisoners, right, who are released. And so it’s sort of an invitation to criminal justice issues. It’s an invitation to care, it’s an invitation to learn about the contributing factors to wrongful convictions and the many ways that the criminal justice system can break down. And in so doing, I think you learn about other characters in the book, other people that are in prison for the crime they actually committed, but in no way is it a just system to deal with their cases or to repair the harm that they may or may not have caused society.
And then again, what a lot of exonerees deal with, as well as parolees, the main offense, if there was any, was just being poor and being unable to fight your case or pleading guilty to a crime that you may or may not have committed, but you plead guilty because you just want to return to your family. And so that makes it, again, very difficult for exonerees especially to gain compensation in the end, because many states have a provision where if you contributed to your own conviction, you can’t gain compensation. And so that really further disenfranchises people who may have falsely confessed to the crime–is that a contribution to your wrongful conviction?–or who pled guilty just to get the best possible outcome for their life or what they thought would be at the time.
CONWAY: You know, as you were saying and I was thinking, in your research, what role does institutional racism play in exonerating people? I mean, as you look at these different cases you looked at, how easy is it for a white person to be exonerated as opposed to a person of African descent?
FLOWERS: So I think it’s much easier for someone a person of color to be wrongly convicted than it is for them to be exonerated of the same crime. So when you look at the registry of exonerations, there are a little more than 1800 known exonerations. Of course the number is much higher, but that’s how many we know of since 1989. And about 700 of them are Caucasian. OK? So I don’t think that that is representative of the number of people who were truly wrongly convicted and sitting in prison or have been wrongly convicted, especially when you look at states and areas that we know have a high amount of official misconduct. And we know that racism is such an important piece of that.
So, for example, in Chicago we now know that 97 percent of official misconduct–via police complaints lodged by citizens–97 percent of those go undisciplined. Right? We also can examine our wrongful convictions in Illinois, and 85 percent of them, of the exonerations we know about, 85 percent of them are minorities.
And so when you look at the larger numbers, I think, well, 700 Caucasian exonerations out of 1800, that seems like almost half, right? But I also think that we’re seeing wrongly convicted numbers higher for people of color. And it’s also probably harder to fight a conviction behind bars and try and overturn a case behind bars when you don’t necessarily have resources. So there’s a socioeconomic piece too, insofar as that does connect to race. So I think it’s a little bit of both.
CONWAY: Well, I’m wondering, with forensic science and all the other kind of new technologies to get convictions, is there fewer, now, wrongful convictions? Because probably 30 years ago people were snatched up. And I did hear you say how people make deals. They plea. It’s like, okay, I’ll take this or I’ll take that to get out or to have a lesser charge or less time, etc. And then if you’re in a state, say, that’s three strikes you’re out, you might end up running afoul of the law again and end up in prison. But is it that fewer people are being actually wrongfully convicted and put in the prison system now because of science and the new technology?
FLOWERS: I think when you look at developments in forensic science and other science–so arson science, for example, has come a long way. Arson used to really wrongly convict a lot of people. Some of those convictions have been re-examined. And now some of those people are free. We know that there was bad hair evidence and testing, right, that was pretty epidemic. Dental bite mark evidence was kind of suspect as well.
But when it comes to whether or not people are being wrongfully convicted at a lesser rate, I think that’s hard to say. My concern is mainly around police misconduct and the racism within many police systems where people are being falsely arrested, having things planted on them. It may not always rise to the level of murder, right, a murder conviction, but I do think that many people are being put behind bars, warehoused in prisons for crimes that they didn’t commit. If they committed a crime at one point, then they’re known to police. Or even if they didn’t, one of the exonerees in my book, who was wrongly convicted of murder, had a few incidents where things were planted on him, and so he had a record. But it wasn’t a real record, right?
And so I think that is really the area that is going to be the hardest to tackle. You know, we can empirically say with DNA evidence or with developments in other areas of science, we can grow in that area, we can debunk things, we can free the innocent. But rooting out police misconduct, which is one of the leading causes of wrongful convictions, I think that’s going to be a much harder task.
CONWAY: Yeah. And even as you were saying and I was thinking of the scientists and the lab technicians and the analysts that falsify reports and data and information, or just botch up the investigation, and just say, this one’s guilty, that one’s guilty, and so on, I’m actually wondering, what do you think–and I heard you say some sort of a national policy for compensation. But what do you think–and I heard you say the police obviously is the culprit in a lot of cases just ’cause they want to close their cases, they want to keep their record straight, etc., in terms of them being successful and locking up and convicting. What do you think is the solution to this in terms of a national policy?
FLOWERS: Well, I think when it comes to the police, I think that we need more states to make their police disciplinary records public. There are only about 12 states right now that allow for that information. So when a citizen files a misconduct complaint against an officer, which you have to think takes a lot of courage to do, a lot of willpower, resources–it’s often a difficult process to go through, or you fear for retaliation. So most police misconduct never gets to that point where a citizen will actually file a complaint. But if that happens, I think the public deserves to know about that data, that information, and it needs to be studied and trends need to be identified and we need to look into patterns and practices. Until we really know where the police misconduct is, it sort of is this illusory enemy that you really can’t do anything about or you just hope doesn’t happen to you.
But if you’re a person of color, it could happen to you every day. Where I work, at the Invisible Institute on the South Side of Chicago–we’re a production company–one of the things that my colleagues do is work with a project called the Youth Police Project, where they interview South Side teenagers about their often daily experiences with police. To think of having a daily experience with police is something that is so foreign to a lot of Americans, but it’s real and it’s there.
And so I think we need to understand where the misconduct is. Who are the officers who have the highest level of complaints that go undisciplined? What are we doing about this misconduct? If we don’t have a system in place, if there are no consequences for false arrests, planting drugs on citizens, or roughing up people and beating them into confessions, if there are no consequences for that and we don’t know who’s doing it, well, then it will just keep happening. And some people are going to end up wrongfully convicted in the process. So I think that is the area that we really need to be focusing on, as well as other developments in science and so forth.
CONWAY: OK. Thank you. Hopefully we’ll do a follow-up and have you back here and maybe give us an update on how this whole exoneree situation is developing.
FLOWERS: Thank you for having me.
And thank you for joining The Real News.
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