Essay Kevin Cooper

Why California Needs an Innocence Commission

To a large degree, DNA testing has proven that this criminal justice system is not as just as it claims to be. Throughout the history of this country, black people know this truth from experience.

By Kevin Cooper

Kevin Cooper is a death row inmate at California’s San Quentin Prison.

Throughout the very tortured history of the Divided States of America, the so-called criminal justice system within it has been anything but just to its minority peoples.

It has however always been more than just to its majority people who called themselves white. Even before the 1857 Dred Scott decision, where Roger B. Taney, Chief Justice of the United States Supreme Court wrote in part that: “Negroes were beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect.”

We African/African American people, Native American people, and all other non-white people had to not just live under those realities, but had to die by them as well. This is especially true when it came to this country’s use of the death penalty in all of its various and horrific forms.

Its use of prisons/penitentiaries/plantations by way of the criminal justice system and its Roger B. Taney variety judges in every courthouse across this country led to a country that not only believed in, but also practiced, locking up and executing its minority peoples, no matter why, or what for.

This happened even before any political divide in this country as we know it today. Back then, it was the right of the white race to do what they wanted to with non-white people. This mindset went on for centuries and then one day it went political. But nothing really changed for non-white people unless you call more oppression or more and harsher punishment a change.

There is nothing written in the United States Constitution about it being unconstitutional to execute or imprison for decades an innocent person. Not as long as that person had what is called a “fair trial,” meaning a trial free from constitutional error—a fair process or proceeding.

This is how this country’s courts and legal proceedings rolled, and rolled they did, picking up and locking up minority people for anything or nothing and sentencing them to prison, or death, supposedly in a fair process free from constitutional error. But these so called “fair processes” weren’t fair at all, especially when district attorneys and police withheld material exculpatory evidence from the defense attorney, jury, judge and everyone else, as we now know that they still do on a regular basis in this country and state.

You can believe former 9th Circuit Court of Appeals Chief Judge Alex Kozinski, a Ronald Reagan appointee, who stated in 2015 that there is an “epidemic of prosecutorial misconduct” in this state concerning district attorneys presenting false evidence or withholding exculpatory evidence from defense attorneys to gain convictions they would not have gotten or maintained if that evidence were known to the defense or court.

To a large degree, DNA testing has proven that this criminal justice system is not as just as it claims to be. Throughout the history of this country, we black people know this truth from experience. The late poet Langston Hughes says more than anyone else can say about the unjust treatment and brutality of black people in the United States criminal justice system in his poem called Justice:

That Justice is a blind goddess
Is a thing to which we black are wise:
Her bandage hides two festering sores
That once perhaps were eyes.

Many victims of America’s unjust criminal justice system have learned that “Justice Is Not Blind” as we are led to believe, but, “blind” folk are the ones who are dispensing justice. These are people blinded by their isms—racism, classism, sexism, along with their religious prejudice, political ideology, and power, among other things—that have all come together to work to the detriment of black and brown and damn near all poor people.

This is a historical truth and a present-day reality in this country, and there must be new avenues opened to combat these injustices.

There have been 167 death row exonerations in the United States since 1973, and the National Academy of Sciences estimates that about 4.1 percent of the 2,620 death row inmates as of Jan 1 of this year are innocent. That would be about 107 innocent men and women who are awaiting execution, 58 percent of them non-white. Using this estimate, as many as 30 out of California’s 727 death row inmates are likely innocent.

DNA has most definitely shown this criminal justice system is broken, and it has exonerated many a non-guilty person from prison and death row. But more people have been exonerated by other ways than DNA.

The vast majority of the people who have been exonerated by DNA or non-DNA factors had their cases denied throughout the criminal justice court system. The appeals court, and all the judges who looked at their appeals denied them for one reason or another. All the while those people are innocent, and many of whom have spent decades in prison for crimes, including murder, that they did not commit.

This is true in the state of California in death penalty or capital cases as they are called, and non-capital cases. The only thing at this point in time that an inmate in a California prison can do if they are innocent, but their appeals have run out because the courts denied them relief, is to file a writ of habeas corpus using California Senate Bill 1134, a state law enacted in 2016.

This allows a habeas corpus writ to be filed as a judicial remedy on the basis of “new evidence” that is credible material and presented without substantial delay. It must be of such force and value that it would have more likely than not changed the outcome at trial! That is too high of a standard for the vast majority of inmates to meet.

In my case, 9th Circuit Court of Appeals Justice Margaret McKeown stated that she could not grant me relief and not because the claims I raised and proved weren’t true, but because of the 1996 Antiterrorism Effective Death Penalty Act and its required high standard of proof that is almost impossible for an inmate to meet.

This type of procedural high bar that Congress passed and President Clinton signed into law was made to uphold convictions despite constitutional violations, and to make it more difficult for inmates to prove they have been wrongly convicted of crimes that they did not commit.

Call it by its name—injustice—whenever criminal cases of any kind are rubber-stamped through the criminal justice system just to maintain a conviction. This is how this system has been allowed to proceed.

And proceed this way it has. This system is not designed to fix itself from within. It has to be fixed, if fixed is the right word, from without. If this system could fix itself, it would have done so long ago, if only to try to disprove the negative and unjust statistics. Experts such as Professor Samuel Gross (University of Michigan, National Registry of Exonerations); Professor Lara Bazelon (Director of the University of San Francisco Racial Justice Clinic); Rob Warden & John Seasly (Northwestern Journal of Law & Social Policy, Unrequited Innocence in U.S. Capital Cases: Unintended Consequences of the Fourth Kind); Robert Dunham (Executive Director, The Death Penalty Information Center), and many others have said and proven that the system is unjust. 

There is a better way to proceed, and part of that better way is the creation of an innocence commission in California to look at any criminal case where there is a real claim of innocence. 

An innocence commission should be made up of Californians who are qualified to sit on such a commission: people who are fair-minded, honest, and willing to correct a wrong that may have happened to a human being who was tried, convicted and sent to prison, even to death row, but whose conviction is in doubt, and whose innocence can be proven if given the chance. 

A model for this is the North Carolina Innocence Inquiry Commission, created in 2006 by that state’s legislature and signed into law by the governor. Since 2007 it has exonerated 12 innocent people. Commissioners are appointed by the chief justice of the state Supreme Court and the chief judge of the state Court of Appeals and include a Superior Court judge, a prosecuting attorney, a defense attorney, a victims’ advocate, a member of the public, a sheriff and two discretionary members. 

It would be up to the California governor to appoint qualified people to this commission, and not just ex-prosecutors or police, who were once solely appointed to the board or pardons and parole. For a very long time, with people like that on the parole board, very few if any inmates got parole, even if they had clean prison records and did all they could to reform themselves. No, we do not want or need a rubberstamp of the criminal justice system and its failure to acknowledge or address its wrongdoings. 

We need an innocence commission comprised of fair-minded people on it from all walks of life: defense attorneys as well as prosecutors, victims’ advocates and former police officers, people of differing political points of view. They must be willing to admit that wrongful convictions do take place, as do frame-ups by law enforcement officers, withholding of exculpatory evidence by district attorneys and police, and every other type of wrongdoing that has been proven to have happened in our flawed criminal justice system. They must not sanctify a court system where certain judges let their political ideology obscure wrongdoing in their courtroom and refuse to recognize a wrongful conviction. 

Misconduct must not be tolerated. The Northern California Innocence Project issues a report in 2010 that revealed prosecutorial misconduct in 707 cases over 11 years, with only six prosecutors in those cases disciplined. Worse, 80% of the convictions in those cases were upheld, despite the misconduct. 

We must confront the history of our defective criminal justice system, too often corrupted by racism, law enforcement misconduct, judicial error and any other human failures that result in wrongful convictions. It is time to join together to request an innocence commission in California, so we have a fair remedy when we discover these mistakes made in any case. 

People who live and work in California, no matter who they are, or what political party they support, deserve a criminal justice system that will live up to the words that “justice is blind,” and that “truth and justice” will be fairly delivered to all. 

Kevin Cooper
Kevin Cooper

In 1985, he was convicted of a 1983 quadruple murder and sentenced to death in a trial in which evidence that might have exonerated him was withheld from the defense. Cooper has become active in writing from prison to assert his innocence, protest racism in the American criminal justice system, and oppose the death penalty. His case was scrutinized in a June 17, 2017, New York Times column by Nicholas Kristof and by 48 Hours, March 21, 2020  Visit and for more information.