Abstract

Excerpted From: Aliza Hochman Bloom, Grappling with a Racialized Selection Process, 58 New England Law Review 29 (Fall, 2023) (121 Footnotes) (Full Document)

Professor Daniel Medwed's excellent new book, Barred: Why the Innocent Can't Get Out of Prison, chronicles why it is nearly impossible to vindicate claims of innocence among those wrongly incarcerated. Barred details a discouraging criminal legal system that prioritizes finality over justice, and Medwed persuasively explains why “[f]inality is a fallacy when it's weaponized to rationalize preventing viable innocence cases from seeing the light of day.”

In its opening chapters, Barred describes the frustrating limits of criminal appellate review. Medwed explains why direct appeals rarely catch wrongful convictions: because a defendant can rarely introduce new evidence, is limited to the review issues that were “preserved” at the lower court, and is burdened by deeply deferential appellate standards of review. For example, the harmless error doctrine enables a type of confirmation bias among appellate judges, which allows them to excuse lower court errors, and is grounded in the assumption that criminal convictions were properly obtained. Medwed explains that appellate judges seldom reverse trial court judges, and they typically assume that their judicial colleagues obtained correct criminal convictions at the trial level. Post-conviction, “collateral” remedies are notoriously insufficient. The federal habeas corpus writ, intended as a last resort to review state court decisions when all state appeal mechanisms have been exhausted, is procedurally curtailed and extraordinarily difficult for criminal defendants to navigate.

Because the appellate and post-conviction processes fail to find and correct wrongful convictions, one would expect state executives to embrace opportunities to prevent or end wrongful convictions. Yet again, Professor Medwed describes additional frustrating barriers. For example, in the many states employing an indeterminate sentencing scheme, parole boards determine whether to release prisoners. These boards primarily focus on how individuals have performed during incarceration and how they are projected to operate in the community. When incarcerated individuals maintain claims of innocence, the parole process presents an insurmountable challenge: these individuals could feign acceptance of responsibility for a crime they did not commit to show the prerequisite remorse, thereby substantially damaging the potential for future exoneration. Alternatively, they could maintain their innocence such that they are unlikely to be granted parole. And with respect to other executive actions, such as clemency, Medwed laments that state governors have adopted a skeptical and overly cautious approach to granting clemency in cases of innocence.

As Professor Medwed explains, a criminal legal system where it is tragically difficult for the innocent to escape incarceration and in which leadership permits innocent people to languish in prison is deeply unjust. Barred is a powerful, clearly wrintten guide to understanding why innocent people remain imprisoned.

Over the past several years, significant scholarly and public attention has been directed at minimizing, or eliminating, our carceral footprint. Abolitionism is principally motivated by the conclusion that our criminal legal system deprives far too many of humanity, and that because reform is painfully incremental and grounded in dubious assumptions about public safety and punishment, the system must instead be radically reimagined. The abolitionist perspective encompasses prison sentences as well as the mechanisms, such as policing, that precede the imposition of criminal punishment. After reading Barred, I share Professor Medwed's rage at the dearth of viable methods to correct wrongful convictions. Yet while Medwed focuses on wrongful convictions in the broad sense of innocent people being convicted, he overlooks another dimension of wrongful convictions: the racialized selection process that determines which non-innocent people will be charged and convicted, and which will not. A comprehensive exploration of the barriers to innocent people getting out of prison should also include reforms targeting this antecedent problem.

To be sure, Professor Medwed clearly defines the scope of his book, and explicitly recognizes the racial concentration of wrongful convictions. It is with those racially disparate injustices in front of mind that I review a major causal pathway towards these racially concentrated wrongful convictions--the Fourth Amendment's structural enabling of racially motivated police-citizen interactions, searches, and arrests. This racialized policing process inevitably leads to a racially disproportionate carceral system.

Professor Medwed has eloquently described the tremendous barriers preventing those who have been wrongfully incarcerated from regaining their liberty. We must also grapple with the racialized selection process at the “front end” of our criminal adjudication.

[. . .]

In Barred, Professor Medwed effectively illustrates why it is hard for innocent prisoners to prove there was racial bias during their jury trial. He explains that with the exception of a post-verdict inquiry into blatant misconduct, such as juror intimidation or exposure to prejudicial media about the alleged crime, the deliberations within a jury room are traditionally shielded from review. It is because of this traditional secrecy, Medwed reasons, that even in cases where racially biased jurors contributed to the conviction of innocent defendants, “the secrecy enveloping their deliberations shield[] these miscarriages of justice for many years.” The procedural difficulty of proving that racial bias affected a jury's decision to convict is just one among the many structural reasons Medwed provides for the racial concentration of wrongful convictions.

After Barred, we must sit, uncomfortably, with the barriers for innocent people trying to get out of prison. But in doing this, we must also confront a major causal pathway--the racialized selection process. The Fourth Amendment structurally enables a selection process wherey explicit and implicit racial bias can infect a police officer's determination of who to follow, stop, search, charge, and therefore convict and incarcerate. We must confront this racialized selection process at the “front end” of our criminal adjudication process.

Assistant Professor of Law, Northeastern University School of Law.