Reparations and Compensation for the Wrongfully Convicted

What happens when the wrong person is convicted of a crime? The problem of wrongful conviction has received an increasing amount of attention from lawyers and legal scholars, journalists, politicians, and the public over the last few decades, since the use of DNA profiling in criminal investigations in the late 1980s. One of the issues raised by this problem has to do with compensation. Should the state provide compensation to people who have been wrongfully convicted of a crime they did not commit and later exonerated? By 2019, thirty-five states and the District of Columbia had compensation laws on their books. Supporters of compensation laws argue that incarceration takes a financial, physical, and psychological toll on inmates and that states have an obligation to compensate wrongfully convicted persons for their years of incarceration. Detractors, on the other hand, argue that creating such an obligation may have dangerous or burdensome implications for the state.

Understanding the Discussion

Compensation law or compensation statute: A law setting out provisions and procedures for the compensation of wrongfully convicted persons.

Exoneration: An official act (by a prosecutor, governor, or court, for example) declaring a person not guilty of a crime for which he or she was previously convicted.

Factual or actual innocence: When the innocent person did not commit the crime. Used in contrast to legal or procedural innocence, which may leave open the factual question.

Wrongful conviction: When the wrong person is convicted of a crime, or a person is convicted of a crime that never occurred. In this discussion, the term is generally used to refer to factually innocent persons convicted of crimes they did not commit, rather than persons not found guilty, due to procedural or technical reasons, of crimes they may or may not have committed.

History

In 1923 Judge Learned Hand wrote, "Our dangers do not lie in too little tenderness to the accused. Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime." In the intervening years, an increasing amount of attention has been paid to the phenomenon of wrongful convictions by legal scholars and lawyers, journalists, politicians, and the public and correspondingly to the issue of compensation for exonerated persons.

The first person in the United States to look into wrongful convictions was probably Edwin Borchard, a law professor and legal scholar. In his seminal book, Convicting the Innocent (1932), with E. Russell Lutz, Borchard identified sixty-five cases of wrongful convictions, analyzed common factors associated with these cases (such as mistaken eyewitness identification, mistaken or false expert testimony, inadequate defense counsel, and others), and called for the enactment of compensation laws in states across the nation.

But it was not until the late 1980s that the phenomenon of wrongful convictions entered the public consciousness. Several developments contributed to increased public awareness, the most important of which was probably the use of DNA testing in criminal investigations. DNA testing allowed police officers and prosecutors to identify perpetrators from small samples of biological evidence left at crime scenes with far greater accuracy than previous forensic methods, such as bite mark analysis or blood typing. One of the first uses of DNA testing in a criminal investigation in the United States was in 1987, to convict a man of rape in Florida. Two years later, DNA testing was first used to exonerate two wrongfully convicted men, David Vasquez and Gary Dotson, of charges of murder and rape, and kidnapping and rape, respectively. In 1996 the National Institute of Justice (NIJ), the research-and-development arm of the Department of Justice, published a first-of-a-kind report on twenty-eight persons wrongfully convicted on charges of sexual assault and murder and subsequently exonerated by post-conviction DNA testing. In the report, the NIJ called DNA testing "perhaps the most significant advance in criminal investigation since the advent of fingerprint identification."

Advances in psychological research also contributed to growing awareness of the problem. Both Borchard and the NIJ had identified mistaken eyewitness identification as a contributory factor to wrongful convictions, particularly in cases of sexual assault. Advances in research enabled researchers to isolate and measure factors affecting eyewitness accuracy and to recommend improvements in police procedures.

A third development was institutional. In 1992, defense lawyers Peter Neufeld and Barry Scheck, who had made their names for their expertise regarding the use of DNA testing in criminal cases, set up the Innocence Project (now an independent nonprofit organization) as a law school clinic at Yeshiva University's Cardozo School of Law in New York to use DNA testing to exonerate wrongfully convicted persons and to propose reforms to the criminal justice system. Other "innocence projects" were established around the country, including the Center on Wrongful Convictions and Medill Innocence Project (now the Medill Justice Project), both at Northwestern University, whose work on DNA exonerations led to a moratorium on the use of the death penalty in Illinois in 2000 and eventually to its repeal in 2011.

As part of the Justice for All Act of 2004, President George W. Bush signed into law the Innocence Protection Act, which included procedures for post-conviction DNA testing for federal crimes, as well as provisions to increase compensation for exonerated persons.

The number of exonerations has grown since the late 1980s, increasing from 11 to 40 a year from 1989 to 1999 and then stabilizing around 45 to 66 a year in the 2000s. In 2012 Professor Samuel Gross and lawyer Michael Shaffer published a report on the newly established National Registry of Exonerations (NRE), identifying and analyzing 873 exonerations between 1989 to early 2012. (The number does not include over 1,000 cases of "group exonerations," mostly for drug or gun-related crimes.) All the exonerated persons had served time in prison, with half having served at least ten years, and over three-quarters having served at least five years. The majority of the cases were rape and homicide cases; though these together are a small proportion (2 percent) of felony convictions, the incentive to clear one's name is perhaps stronger for serious crimes with longer sentences. Postconviction DNA testing was used in over a third (37 percent) of the cases, primarily in rape exonerations, but increasingly in homicide exonerations as well.

Common factors associated with exoneration included mistaken eyewitness identification, false confessions, perjury or false accusations, false or misleading forensic evidence, official misconduct, and inadequate defense counsel. Gross and Shaffer identified perjury and official misconduct as leading factors in homicide cases, and mistaken eyewitness identification and misleading forensic evidence in rape cases. Inadequate defense counsel was harder to quantify, but clear evidence of it was found in at least 12 percent of cases, and, according to the authors, might have been in present in more than half the cases.

Reparations/Compensations for the Wrongfully Convicted Today

There are three main ways to seek compensation for a wrongful conviction from the state. Perhaps the easiest and quickest way is through federal or state compensation laws. The Innocence Protection Act provides for compensation of up to $50,000 per year of incarceration for noncapital crimes and twice that for capital crimes. By May 2019, thirty-five states and the District of Columbia had compensation laws on their books—the majority of which were enacted after 1989. The amount and type of state compensation varies widely: from "fair and reasonable damages" in West Virginia, to assistance with educational expenses in Montana, to a maximum sum of $20,000 in New Hampshire regardless of years of incarceration, to $80,000 per year of incarceration in Texas, plus a monthly annuity, and assistance with child support, tuition, and health insurance expenses. The strongest compensation law then passed was that of Nevada, which provides a sliding scale depending on the number of years of incarceration, with the maximum amount being $100,000 per year for those imprisoned for twenty or more years, plus health, education, and counseling services and expungement of their criminal records. The eligibility criteria for compensation also varies by state; for examples, states such as Maryland and North Carolina require a full pardon from the governor to qualify for compensation, while other states such as Missouri only provide compensation for people exonerated through DNA testing.

The second way is to bring a civil rights lawsuit against the federal government or to bring a civil lawsuit against particular police officers, local or state prosecutors, or defense lawyers for misconduct. The problem with lawsuits, from the point of view of the exonerated person seeking compensation, is that public officers are generally granted immunity from prosecution or suits for actions conducted in the course of their duties. The burden of proof for lawsuits is high; defendants must prove malicious intent and willful misconduct on the part of the public officers in order to win their case. It may be that no one person can be blamed for the wrongful conviction; a case of mistaken eyewitness identification, for example, could happen even if witnesses, police officers, prosecutors, and defense counsel all act in good faith.

The following case is illustrative. Drew Whitley was exonerated in 2006 after serving eighteen years in prison on a charge of murder. He filed a lawsuit in federal court. The judge agreed with his contention that police officers had been negligent in the investigation of his case but argued that he had not proven intentional misconduct on their part, and so ruled against him. Whitley received no compensation from the state or courts for his years of wrongful incarceration.

The third way is to bring a private bill before the legislature. Private bills or "moral obligation" bills have been used to pay otherwise unenforceable claims to individuals harmed by the state—to the wife of a sheriff killed by a man in his custody, for example, or a child injured while in the care of the state. However, the process of introducing a private bill and overseeing its enactment into law is a long and uncertain one and depends more on the resources of the exonerated person (including his or her political connections) and the political climate at the time, than on the merits of the case.

According to the National Registry of Exonerations, between 1989 and the end of 2018, there were 2,372 exonerations of wrongfully imprisoned people, representing more than twenty thousand years of freedom lost. Although states and local governments had paid more than two billion dollars by then, fewer than half of those exonerees were compensated at all.

Advocates of compensation for exonerees have praised Congress for exempting compensation funds from taxation in 2015 and even making the change retroactive—but criticized their failure to notify exonerees of the right to an exemption or a refund and of the December 2018 deadline to file amended returns.

These essays and any opinions, information, or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

Bibliography

Bernhard, Adele. "A Short Overview of the Statutory Remedies for the Wrongful Convicted: What Works, What Doesn't and Why." Public Interest Law Journal 18 (2009): 403-25. Print.

"Compensation Statutes:A National Overview." National Registry of Exonerations, 21 May 2018, www.law.umich.edu/special/exoneration/Documents/CompensationByState‗InnocenceProject.pdf. Accessed 26 Sept. 2019.

"Exonerations in 2018." National Registry of Exonerations, 9 Apr. 2019, www.law.umich.edu/special/exoneration/Documents/Exonerations%20in%202018.pdf. Accessed 26 Sept. 2019.

Grann, David. "Trial by Fire." New Yorker. Condé Nast, 7 Sept. 2009. Web. 20 May 2015.

Gross, Samuel R., and Michael Shaffer. Exonerations in the United States, 1989-2012: Report by the National Registry of Exonerations. N.p.: U of Michigan Law School, Northwestern U School of Law, 2012. Digital file.

Levy, Ariel. "The Price of a Life." New Yorker. Condé Nast, 13 Apr. 2015. Web. 20 May 2015.

Rodd, Scott. "What Do States Owe People Who Are Wrongfully Convicted?" Stateline, Pew Charitable Trusts, 14 Mar. 2017, www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/03/14/what-do-states-owe-people-who-are-wrongfully-convicted. Accessed 26 Sept. 2019.

Shackford, Scott. "U.S. Prisoners Have Lost a Combined 20,000 Years of Life to False Convictions." Reason, 10 Apr. 2019. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=pwh&AN=135827833&site=eds-live. Accessed 26 Sept. 2019.