AP Photo/Richmond Times-Dispatch, P. Kevin Morley
Rectify: The Power of Restorative Justice After Wrongful Conviction
By Lara Bazelon
Beacon Press
WHEN AN EXONERATION FOR A WRONGFUL CONVICTION OCCURS, the media’s images of the aftermath follow a familiar pattern: the exonerated prisoner—almost always a black man—leaving prison, or leaving the courthouse, all smiles. There may be balloons and signs waiting, as well as hugs from family members who may not have even touched their father, son, or husband in decades. It seems something like a rebirth, the injustice of the cell far behind. As old cases are reviewed and sometimes overturned, these scenes sporadically pepper the news cycle, so much so that the idea of a person being locked away for no good reason for upward of 40 years and then, suddenly, free becomes somewhat commonplace.
These happy scenes obscure what often comes next, and the other lives that were shattered due to a judicial system all too ready to lock up black men on shaky evidence or nothing more than eyewitness accounts. As Lara Bazelon writes in her book Rectify: The Power of Restorative Justice After Wrongful Conviction, “When the truth erupts with all its outsized consequences, exposing a system that is rife with venality, bias, and cruelty, the revelations are not freeing. A wrongful conviction is a psychological prison for everyone snagged in its net.”
Drawing from her own experiences as both a former public defender and former innocence project director, Bazelon aims to bring to light the perspective of everyonecaught up in that tangled web. First, of course, are the exonerated: The wrongfully convicted and exonerated are often dropped into an unfamiliar world without much guidance and little to no support. They might have health issues to deal with—stemming from diseases that went untreated in prison—as well as the psychological vestiges of being forced to live in a cage. They have to get a job. They have to pay rent. They have to wrestle with the truth that perhaps decades of their lives have been harshly and unforgivingly spent, wadded up like a piece of paper and tossed in the trash.
They are finally free, but when the state cuts the cord, sometimes that's all it does. Not all states offer monetary restitution for stolen years, and some steadfastly refuse to admit the innocent should be freed at all, even in the face of solid evidence.
Bazelon doesn't merely chronicle the harrowing experience of re-entry. She also reports on the perspectives of the lawyers, district attorneys, and other representatives of the judicial system, as well as the perspective of the victim of the original crime—the one who likely stood up in court and said, I know that's him for certain, but turned out to be wrong. All of these actors together were variously impacted by the wrongful conviction. Using strategies and practices from the theory of restorative justice, which focuses on repairing the harm done to a community, she writes, they might all find a way toward mitigating the injustice of wrongful conviction together.
BEFORE SHE MAKES THE CASE FOR RESTORATIVE JUSTICE, Bazelon spends the bulk of the book describing specific cases, some involving her own clients, and laying out how exactly a police department’s actions can prompt a mistaken court ruling. Her approach isn’t merely statistical; she also provides original interviews and stories that chronicle the experiences of both crime victim and accused: when they were erroneously pushed together, then separated by enmity and barbed wire, and up until their paths converged once more.
One of these stories is that of Thomas Haynesworth, who was 18 years old when he was picked up by police on suspicion of rape.
There was a serial rapist, identified by his victims as a light-skinned African American, who had been preying on women in Haynesworth's community. Haynesworth was also a light-skinned African American. As Bazelon carefully lays out, five women were confident in their identification of Haynesworth as their attacker. But to get to that point, law enforcement made a series of cataclysmic mistakes, especially regarding eyewitness identification methods.
All five women were young white women—and juries are much more likely to convict in cases where a black male is the alleged perpetrator of a crime against white women. In Haynesworth's case, the jury was not told about the problems with cross-racial identification—that people are better able to identify differences among people of their own race than they are among people of other races. (Just eight states have policies to share this research with juries.) Even were this not the case, the particular eyewitness methods the police used to identify Haynesworth were flawed. They primed the victims to choose someone—anyone—by, for example, telling one victim, Janet Burke, that there was a suspect in custody. Police also told Burke, who had been raped at knifepoint, that Haynesworth had an O blood type, the same as her attacker. In her mind, this confirmed Haynesworth's guilt. Police did not tell her that nearly half of all African American men have an O blood type.
Officers and others in the judicial system make fatal mistakes—that's if they're mistakes at all, and not intentional.
Types of testing that once were believed rock-solid, like analyzing hairs or bite marks, have since been shown to be imperfect—but have put innocent people in prison or put them to death. Bazelon mentions a 2015 Washington Post article that describes an FBI investigation into hair analysis used to convict defendants. At the time of that writing, the FBI had so far reviewed 268 cases, and found that the examiners had used inaccurate forensic testimony at trial in 95 percent of those cases. Thirty-two defendants in those cases received the death penalty, and by 2015, 14 of them had already been executed or had died in prison.
Nor is the problem limited to testimonial fallibility. The underfunding of public defense also leads to erroneous convictions. In Louisiana, for example, defendants who need public representation are often put on a waiting list, and may be given the opportunity to speak for just a few minutes with their court-appointed attorney. The poorest citizens are likely to receive the worst defense, and may then face the worst consequences.
Bazelon also recounts the stories of district attorneys' offices refusing to admit that the wrong person is behind bars, even when the evidence is clear that the prisoner they convicted is innocent. This sort of thinking echoes that of the late Supreme Court Justice Antonin Scalia, who wrote in a concurring opinion in 1993’s Herrera v. Collins, “There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
As police-officer-turned-lawyer James Figorski noted in Bazelon's account, some prosecutors “would burn the world down before they admit a mistake.” Figorski was reacting to a 2011 decision by the Philadelphia district attorney not to review one of his client's cases. That client was exonerated in 2017. (The following year, Larry Krasner took the helm at the Philly DA’s office, which is now actively reviewing a handful of cases via a revitalized conviction review unit.)
As yet, the number of “progressive prosecutors” who, like Krasner, are willing to reverse convictions when new evidence emerges isn't overwhelming. Bazelon herself wrote a widely read New York Times op-ed drawing attention to cases in which Senator Kamala Harris, in her previous posts as San Francisco DA and California attorney general, “turned legal technicalities into weapons so she could cement injustices.” In one instance, a man who was spending 27 years to life behind bars was found innocent in 1999 by a federal court that ruled he had an ineffective lawyer and that the police officers who testified against him were not credible. Attorney General Harris appealed that ruling, arguing that the man did not file paperwork in a timely fashion. (In response to the Times op-ed, Harris defended her record by pointing to other reforms she promoted, like job training programs for first-time offenders.)
Scalia notwithstanding, some champions of exoneration have been conservatives.
It's not every day you get to say that Texas provides the strongest model for reform, but Texas has the strongest laws to protect the wrongfully convicted, with the most generous policies in place to compensate exonerees for what the state did to them.
Really. After all, if conservatives are distrustful of the government, shouldn't they also be distrustful of the government as ultimate arbiter?
Accordingly, one of Haynesworth's biggest supporters, who was instrumental in his release, was Tea Party crusader and then–Virginia Attorney General Ken Cuccinelli. As attorney general, Cuccinelli, who gets it wrong on nearly every other social- and economic-justice issue, had a very simple outlook that shouldn't be as revelatory as it is: “My job is not to defend convictions,” he told Bazelon, “but to defend justice.” Cuccinelli rallied to Haynesworth's cause when few others would. Though two of the five cases against Haynesworth were overturned by DNA evidence, the evidence from Haynesworth's other cases had been destroyed. (Across the country, the majority of wrongful convictions are overturned due to evidence besides DNA evidence—too much old physical evidence has been destroyed to conduct DNA testing.)
With support from his state's attorney general, Haynesworth won his freedom. Cuccinelli apologized to him on behalf of the state, which is more than some exonerees ever get. Even after a conviction has been overturned, some DAs have lamented the release of a person that they, against all evidence, steadfastly believe is still guilty.
SO MUCH OF RECTIFY IS DEDICATED to exposing the existence and injustice of wrongful convictions that readers are 100 pages into the book before they come upon Bazelon’s case for “restorative justice” (RJ)—an “approach that seeks to empower people to address the harms, needs, and obligations that arise when a crime has been committed by bringing together victims, offenders, and members of their respective communities.”
RJ, which has been gaining popularity especially in the juvenile-justice system as a more humane and successful option than punitive justice, seems like another gargantuan issue to tack onto the already shattering stories Bazelon has told about wrongful imprisonment. Yet Bazelon's treatment of RJ is what makes Rectify a new contribution to the literature on mass incarceration and wrongful conviction. Typically, restorative justice is used when a crime has been committed and the perpetrator accurately identified. The offender answers to their community and victim, and together they embark on a process to find how exactly to repair the damage that was done to the victim and communityandto work to reintegrate the offender back into society. According to the Centre for Justice and Reconciliation, a project of the NGO Prison Fellowship International, RJ assumes three principles: Justice should be focused on repairing the harm caused by crime; victims should have a say in this process; and “the responsibility of the government is to maintain order and of the community to build peace.”
In the case of wrongful conviction, an offense has been committed by the justice system itself—the government has not maintained order, but itself is an instigator of harm.
Bazelon explores how the state can tangibly address that harm, even though it cannot ever be fully ameliorated. In Texas—where, it must be said, more people are executed than in any other state—exonerees are awarded $80,000 for every year the person was imprisoned, $25,000 for each year they spent on parole or on a sex offender registry, as well as an annuity. The state also provides funding for job training and education for exonerees and offers them the state employee health plan. And to prevent wrongful conviction in the first place, Texas has instituted policies to limit “junk science”—like hair analysis or bite mark testing—in the courtroom, and to ensure that eyewitness identification procedures align with best practices.
The state actually apologizing to the exoneree—as Cuccinelli did to Haynesworth—also goes a long way. The first step to repairing harm is acknowledging it in the first place.
BUT THE VICTIMS OF WRONGFUL CONVICTION ARE TWOFOLD—the person sent to serve time for a crime they did not commit as well as the original victim of the violent crime. (And that’s not even counting the family members who also suffer from the tragedy and sorrow of wrongful conviction.) Indeed, when prisoners are exonerated, the original victims are sometimes viewed as extra baggage. The women whom Bazelon profiles are typically forgotten—sometimes even condemned—by a public that loves to hear a redemption story.
“I was a rape survivor, but what am I now?” Burke, the woman who was raped and identified Thomas Haynesworth as the assailant, asked Bazelon. “What do you call that person who messed it up with the identification?” Burke said people told her that she should have been the one sent to prison.
The unlikely relationships between accuser and accused allow for something that is not quite closure, but is at least a path toward understanding. By meeting and growing close to Haynesworth, Burke unexpectedly found forgiveness, as well as the strength to overcome her crushing guilt and become an advocate for reforming the judicial system. And Haynesworth, who also became an advocate, could see exactly how, because of trauma and a blind faith in the police, Burke could have been so certain when she identified him as her attacker. His reaction to the avoidable tragedy that befell him could have been justifiable anger, but instead he focused on the future: He had to “let [it] go to really be free,” he said.
Haynesworth and Burke are not the only ones to have found something like peace by getting to know each other's story. Ronald Cotton, who was exonerated after 11 years for a rape he did not commit, and Jennifer Thompson, who misidentified Cotton as her rapist through a traditional, now known to be flawed, eyewitness lineup, wrote a book together about their experiences. Many of these unlikely friends find others like themselves at retreats organized by Healing Justice, a group that Thompson started for those impacted by wrongful conviction.
There are more innocent people who currently languish in prison than will ever be exonerated. Even with the advent of DNA evidence, so much evidence, even if it could have been tested, has been destroyed. The possibility of overturning convictions in the absence of this unshakable evidence, especially when DA offices are reluctant to admit that the justice system is anything but perfect, seems remote.
But when those exonerations do happen—as Bazelon writes, “leav[ing] upheaval and ruin in its wake”—there is an opportunity, through restorative justice, to support everyone left behind by the system, for that very system to make right by them.
