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| Jeffrey Gutman |
Few of us could imagine being wrongly imprisoned for a week, much less 20 years, as Horace Roberts was.[1]
Nor can we easily assign a fair monetary value to a year lost to wrongful conviction.
But one number is real and calculable, and, with Roberts' recent settlement of $11 million against Riverside County, California, it just crossed $3 billion.
That is the amount that states, counties and municipalities have paid in judgments or settlements to those listed in the National Registry of Exonerations as having been exonerated of wrongful convictions since 1989.[2]
The national registry lists over 2,800 exonerees. Together, they served over 25,000 years in prison, an average of almost nine years per person.
Putting aside the 125 people wrongfully convicted in federal court, those wrongly convicted in state court generally have two routes to compensation.
First, they can seek monetary relief against the state, and in some states, nonmonetary support like vocational, medical, housing and educational assistance, under state compensation statutes. Thirty-six states and the District of Columbia have such statutes.
To obtain compensation, claimants must prove their innocence, but they do not have to prove that a government actor caused their wrongful conviction.
Second (in some states, alternatively), they may seek compensation against subdivisions of states, like counties and cities, and state actors, like police officers, under federal civil rights or state law tort theories in which they must demonstrate both their innocence, and that unconstitutional or negligent state action caused their wrongful conviction.
In collaboration with the national registry and the Innocence Project, I have studied whether and how each of the exonerees in the registry have been compensated.
There has been real progress. Far more states have wrongful conviction compensation statutes now than in the late 1980s.
Many of the most recent statutes or amended statutes have been passed in red states, like Idaho, Indiana, Kansas and Montana. Texas is widely heralded as having a statute that is both generous[3] and efficient. Louisiana just increased the amount payable under its statute.
In these and other states, Republicans and Democrats have together heeded the moral call to compensate the wrongly convicted.
Even so, state compensation, which accounts for $774 million of the $3 billion paid, is uneven and often ungenerous.
Fourteen states, including Georgia, Oregon and Pennsylvania, have no statute.
Only 54% of those in the registry potentially eligible for compensation have sought it, partly because of unnecessary statutory barriers such as those in Florida[4] and Missouri.[5]
Of those who filed for compensation, only 75% have received it.
Most of those denied were found unable to demonstrate their innocence, despite being on the national registry, which has a high bar to qualify for entry.
The amounts paid to the exonerated also differ widely, from Wisconsin, which pays a maximum of $25,000, to New York, where there is no cap on damages.
Under the New York statute, prevailing exonerees have averaged over $150,000 per year in compensation, which is four times more than California and over 10 times more than Illinois.
Is a year lost to unjust imprisonment worth 54 times more to a New Yorker than a person from Wisconsin?
Federal civil rights cases are even harder to win.
Prosecutors are shielded by absolute immunity, and police officers are often afforded qualified immunity. Statute of limitations issues, doctrines that make it difficult to win cases against counties and cities for their policies or lack of thereof, and the loss of evidence of misconduct over what is often decades, frequently stand in the way of justice.
In part for these reasons, less than 44% of exonerees have filed civil rights cases, and about half of those received an award through settlement or jury verdict, often many years after filing the complaint.
Even so, multimillion-dollar settlements and verdicts, like that of Roberts, are increasingly common, but they are not distributed equally among the registry's exonerees.
I had expected my research[6] to show a statistical relationship between an exoneree's race and the likelihood of filing for and receiving an award in these civil rights cases. That turned out not to be so.
Instead, geography was an important determinant.
My research showed that the odds of filing and winning in civil rights cases in states carried by Hillary Clinton was much higher than in those that voted for Donald Trump.
And, about one-half of the $2.2 billion paid nationwide in civil rights cases went to exonerees wrongly convicted in just two states — Illinois and New York — even though only 24% of the exonerees were wrongly convicted in those states.
Whether and how much an exoneree is compensated has a lot to do with geographic fortuity — the state in which one is wrongly convicted — and much less to do with the seriousness of the government misconduct or the extent of the exoneree's suffering.
Geographic equity is not easily fixed, although more uniform compensation statutes in every state would help.
So would expanding the bench of talented civil rights lawyers taking on these cases in states that might be perceived as having tough juries and even tougher legal precedent.
Wrongful conviction compensation is necessary simply because there are wrongful convictions.
One would like to think, though, that state statutory compensation and federal civil rights awards also incentivize the sorts of reforms that reduce the incidence of wrongful conviction in the first place.
It is true that this is not possible in a lot of cases. According to the registry, about 45% of wrongful convictions do not arise from the misconduct of prosecutors or police. Some are simply the product of mistakes, like erroneous but uncoerced identifications.
Yet that leaves the national registry's finding that official misconduct is a contributing factor in about 55% of wrongful convictions.
Maybe we have decided that wrongful conviction compensation and all of the enormous costs of wrongful conviction are the price we are willing to pay for an unchanging criminal justice system.
But there should be a more effective feedback loop to permit state legislatures to make that unwise judgment knowingly or, better, to use this data as one of many reasons for change.
A small and cost-free change to state compensation statutes could help.
Most of the bad actors in wrongful conviction cases are local police or prosecutors, or cities and counties with unconstitutional policies or practices unchecked by fair procedures designed to reduce the risk of wrongful conviction.
Cities and counties, or their insurers, sometimes pay for their misconduct in civil rights cases. But it is often the state, not the city or county, that sets key criminal justice policy.
Missing here is a feedback loop that provides state policymakers with the comprehensive data that might support reform to reduce the incidence of wrongful conviction.
Nor does that feedback loop work with state compensation statutes. State legislatures pay exonerees under these statutes, but prevailing in those cases does not require a showing of misconduct.
We need to close the feedback loop by informing state legislatures why they are writing those checks.
Democrats and Republicans should easily agree that state wrongful conviction compensation statutes be amended to require the state attorneys general who defend these claims, or the state agencies that process them, to report to their respective legislatures why a prevailing claimant was wrongly convicted.
This is not complicated for anyone processing these cases.
Indeed, they need go no further than the national registry itself, which both describes the case and, in cases of official misconduct, assigns each one or more of 11 tags to describe the nature of that misconduct.
The types of misconduct include, for example, withholding exculpatory information, knowingly permitting perjury and coercively interrogating the exoneree.
The state legislature would not merely be presented with an invoice, but the reason why it must pay it.
Armed with that data, thoughtful legislators from both parties can work to reduce future state costs by enacting legislation aimed at preventing wrongful conviction in the first instance.
$3 billion cannot make exonerees whole. But reconceiving state wrongful conviction compensation statutes can provide the means necessary for legislatures with fiscal foresight to curb the policies and practices that cause wrongful conviction.
Perhaps it is not altogether surprising that Illinois, the state with the second most wrongful convictions in the registry and the state in which nearly 20% of the $3 billion has been paid, was the first state to pass legislation prohibiting law enforcement officers from using coercive interrogation tactics on juvenile suspects.[7]
Effective feedback loops and strong public advocacy can produce commonsense reform that hopefully will slow our country's path to the next $3 billion, and the pain and suffering that number obscures.
Jeffrey Gutman is a professor of clinical law and director of the Public Justice Advocacy Clinic at George Washington University.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5396.
[2] https://www.law.umich.edu/special/exoneration/Pages/about.aspx.
[3] https://innocenceproject.org/compensating-wrongly-convicted/.
[4] https://www.tampabay.com/news/florida/2020/09/27/florida-is-leaving-the-states-exonerated-inmates-penniless/#:~:text=A%20state%20law%20allows%20exonerated,a%20cap%20of%20%242%20million.&text=Florida%20passed%20the%20Victims%20of,according%20to%20the%20Innocence%20Project.
[5] https://www.chicagotribune.com/midwest/ct-aud-nw-missouri-governor-pardons-20210610-427r6pau7neu5haq2uknglksbu-story.html.
[6] https://static1.squarespace.com/static/56a67d1e05caa777b1877b09/t/609de00f9227c964ce2c004f/1620959251663/Volume+11%2C+Issue+2.pdf.
[7] https://innocenceproject.org/illinois-first-state-to-ban-police-lying/.