Black History Month: The Duty to Confront

By Amshula Jayaram

In recognition of Black History Month in February, the Innocence Blog will feature a nearly month-long series that will examine the intersection of the nation’s evolving criminal justice system, especially around wrongful convictions, and the lives of black people in 21st Century America. The series will feature personal and professional stories and perspectives by legal and law enforcement experts, as well as people at the forefront of changing post-conviction laws for the wrongfully convicted in the United States. Please visit the Innocence Blog this month to read guest posts from all the contributing authors.

Amshula Jayaram is a member of the policy team at the Innocence Project. She leads multi-year policy campaigns in a number of states to achieve legislative or administrative change on the issues of eyewitness identification, recording of interrogations and post-conviction DNA testing. 

Last week, the Equal Justice Initiative released a

report

on the history of lynchings in the South, defining them as acts of terrorism and detailing the breadth of violence from Reconstruction to the post-World War II era.  At once an investigation and a call to action, the report urges a process of truth and reconciliation, at the heart of which involves an effort to “concretize the experience [of lynchings] through discourse, memorials, monuments, and other acts of reconciliation.”

The release of this report comes within the first few weeks of Black History Month and brings with it a heightened sense, at the very least, that while this month is about celebrating the richness and vitality of black culture, it is also about acknowledging the struggles—both past and present—to achieve genuine equality and justice in the United States.  This month reminds us that as painful as it may be, we have a duty to continue to confront extreme systemic brutality—such as slavery and the Jim Crow South—because the repercussions are powerful, pervasive and ongoing.  At the same time, we also have a responsibility to confront those acts that are less blatant and often unconscious—the underlying, almost

invisible

problems that contribute to an unjust outcome all the same.

Nowhere is this more apparent than in the criminal justice system, which has come to symbolize many of the deep disparities in treatment based on race in this country.  The duty to confront extends beyond recognition and towards a deeper understanding of the forces at play which lead to injustice. In the universe of wrongful convictions, there are instances where decisions were made as a result of conscious biases against people of color.  At the same time, there are those cases of individuals acting in good faith who erred because of an absence of information or awareness of their own biases.  In our work here at the Innocence Project, we have seen details of cases

inadvertently fed to a suspect

, leading to false confessions; individuals misidentified because of

procedural missteps

; and biological evidence analyzed incorrectly because of insufficient training.  The roots of wrongful convictions exist along a continuum of awareness, but their consequences are equally devastating.

For most human beings, realizing one’s own mistakes and the source of them can be daunting, to say the least.  However, when the consequences are far reaching—when justice and people’s lives are in the balance—the anxiety around accepting these errors must be near-paralyzing.  That said, while we can empathize with the struggle, we cannot back away from it. For all the players in the justice system, whether defense attorneys, police, prosecutors or judges, the duty to confront is all of ours, as is the responsibility for ensuring justice.  Often, as advocates for criminal justice reform, we hear arguments that a wrongful conviction “would never happen” in a given state.  But as the map of exonerations lights up more and more of the country, those arguments grow weaker and the duty to confront grows increasingly urgent. 

Fortunately, a growing number of states around the country are implementing the kinds of science based policy reforms which can prevent wrongful convictions, and eliminate the impact of error—inadvertent or otherwise.  To date,

21 states

record all custodial interrogations—the single most effective tool in preventing false confessions;

12 states

have instituted scientifically sound practices for eyewitness identification lineups; and federal entities such as the

National Institute of Science and Technology

are working on standards and practice in forensic science around the country.  While we still have miles to go, the policy changes already underway show a system that can be responsive, adaptable and responsible.

In his

widely acclaimed TED talk

from 2012, Bryan Stevenson, executive director of the Equal Justice Initiative, spoke about the process of reforming our system of justice.  At the end of his talk, he described a conversation with civil rights activists Rosa Parks and Johnnie Carr.  They asked about his work, and after listening, Ms. Parks shook her head and said, “That is going to make you

tired, tired, tired

.”  There was a pause as her friend Ms. Carr piped in, saying, “That’s why you’ve got to be brave, brave, brave.”   

Talking about injustice is not easy.  Acknowledging bias or error can be painful and distressing.  As Stevenson says, however, each of us is more than the worst thing we have ever done.  The process of reforming the justice system is going to be tiring, and at times maybe even terrifying.  But while we may be flawed, we must also be brave.