Legally Speaking: Compensating the Exonerated

November 28, 2007

By John G. Browning, Southeast Texas Record

The NBC television drama "Life" centers around a wrongfully convicted policeman who-after serving years for a crime he didn't commit-is released and rejoins the force to help solve crimes. He does so from a luxurious mansion and a sleek sportscar, the byproducts of a multimillion dollar civil settlement stemming from his unjust incarceration.

"Life is what was taken from him, and life is what he gets back," his lawyer reasons.

But in real life, how are the exonerated compensated? How much is enough to pay someone back for a life interrupted? With the advent of DNA evidence, an increasing number of prisoners nationwide have not only been able to secure their freedom, but also to make a compelling case that they deserve to be paid for their time behind bars.

Shockingly, most states offer no automatic financial reparations to exonerated inmates. In the 22 states that do provide some measure of reimbursement (including Texas), the amounts vary significantly.

California, for example, provides $26,500 for each year wrongfully spent behind bars. Ohio pays $40,330 for each lost year, plus attorney's fees and lost wages. Vermont, Hawaii, and Michigan pay a maximum of $50,000 for each year served, while Alabama's minimum is $50,000 per year. Tennessee, meanwhile, has a cap set at $1 million, regardless of how many years were wrongfully served.

In states like Missouri, on the other hand, compensation is not on a set scale but rather is determined by subjective factors at the discretion of the state. In the case of one inmate freed from his prison term on the strength of newly examined DNA evidence, the settlement from the state amounted to about $181,000, or around $50 a day.

The process by which such claims are made also varies considerably from state to state. And in some states lacking a formal compensation program, wrongfully convicted prisoners often have no choice but to take their chances with the justice system once again by filing a civil lawsuit.

Somewhat surprisingly, Uncle Sam is a little more generous with his money. Someone exonerated of federal crimes is eligible for $50,000 for each year he was behind bars; if the crime in question was a capital crime, he can recover $100,000 for each year.

In 2001, Texas adopted a compensation law for exonerated prisoners. Under this law, such individuals can recover $25,000 for each year served, up to a maximum of $500,000. Between 2001 and the end of 2006, the state paid out a total of about $3.6 million, spread out over 15 former inmates. During that same time period, at least 14 other individuals had their claims for compensation denied.

The money comes from Texas' General Fund, and is disbursed by the state comptroller's office once a claim is approved. Although the program was plagued early on by criticism of untimely payments and excessive bureaucratic red tape, the state has made efforts to improve the process.

But Texas' system came under fire earlier this year for a different reason-the amount it provides. Senator Rodney Ellis (D-Houston) introduced legislation this year that would have significantly increased the amount a wrongfully imprisoned inmate could receive. Under Senator Ellis' bill, Texas would have matched the federal government's policy of paying $50,000 per year served, with the payments increasing to $100,000 per year in the case of death row inmates.

In addition, Senator Ellis' plan would have eliminated the existing $500,000 cap. While the bill was approved by the Senate, it never reached the floor for a vote in the House, and so Senator Ellis' efforts ended as time expired in the legislative session.

Will Senator Ellis or others renew the call for increased compensation in 2009? Only time will tell.

But consider a few factors in the meantime. Traditionally, the record of exoneration reparation programs has been somewhat hit or miss, primarily because exonerations have been relatively rare in U.S. history-the Innocence Project estimates that there have been only 1,300.

With the availability of genetic testing, exonerations are becoming more common-by the end of August, 2007, 207 prisoners in the U.S. had been exonerated thanks to DNA. And with the higher rates of exonerations, compensation programs and their adequacy have come under greater scrutiny.

According to Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University Law School, "In the vast majority of these cases, the DNA analysis has left absolutely no doubt that the person was innocent. So people have begun applying for automatic compensation, which is really not adequate."

Moreover, this is a particularly acute concern for Texas.

With 13 convictions overturned with the help of DNA test results since 2001, Dallas County leads the nation. The issue of the wrongfully imprisoned has become sufficiently high in profile to lead Dallas County District Attorney Craig Watkins to call for the creation of a special division within the D.A.'s office to investigate such miscarriages of justice.

There will be more people exonerated-folks like Greg Wallis, who was convicted of rape in 1989, sentence to 50 years in prison, and exonerated in 2006 by DNA evidence. After years in prison for a crime he did not commit, Wallis-like other exonerated individuals-is struggling to recover the fragments of his former life. Besides the emotional and psychological toll taken by years behind bars, individuals like Greg Wallis have to cope with the economic realities of a career interrupted and a return to the workforce.

His attorney, Jeff Blackburn of the West Texas Innocence Project, points out that the compensation available under the current program is "a joke. I don't know of anybody who says 'I'll go to prison for 20 years of my life if you'll give $25,000 [a year] at the end of it.'"

Think about it. You've been convicted for a crime you know you didn't commit. You've been plucked from family and friends and thrown into a human cesspool for years as you struggle to survive the grim realities of prison life-gang violence, murder, rape and degradation.

Then, if you've been among the fortunate few to have been vindicated by genetic testing, you're released into a world that in many ways you don't recognize. As you struggle to adjust and get your life back, how much do you think each year that's been stolen from you is worth?

Something tells me that for most of us, that figure would be higher than $25,000.