Assessing Compensation Statutes For The Wrongly Convicted

As the discovery of wrongful convictions grows, so does concern in the legal community and public sphere about actual innocence. Though research on miscarriages of justice has grown tremendously, most has focused on the factors contributing to wrongful convictions, with relatively little attention paid to the post-release struggles of exonerees. Specifically, social scientists have not yet examined policies designed to assist the exonerated in their return to society. This study provides a content analysis of existing compensation statutes for the wrongly convicted. Results show that just more than half of American states have compensation statutes for exonerees, and the assistance offered varies tremendously from state to state. Assessing current statutes in comparison to a model standard indicates that whereas some jurisdictions provide fairly comprehensive packages, others offer little in the way of reentry assistance. The importance of such statutes and implications for the wrongly convicted are discussed. Robert J. Norris (2012) "Assessing Compensation Statutes For The Wrongly Convicted" Criminal Justice Policy Review 23(3) 352 –374 [DOI: 10.1177/0887403411409916] Version Of Record Available At www.journals.sagepub.com Research on the subject has increased, and knowledge about these cases of injustice has affected the perceptions of our criminal justice system among both the public and legal community (Garrett, 2008). Policies to right these wrongs, however, have not kept pace. Though some states have implemented reforms designed to reduce the number of wrongful convictions, increase the discovery of mistaken verdicts, and remedy the situation as best as possible, others have not acted. Even with protective reforms in place, it seems inevitable that at least some innocent defendants will be convicted. The victims of these miscarriages of justice often desire compensation. Indeed, Campbell and Denov (2004) discuss the feelings of security and comfort that state-provided support may bring for exonerees, who acknowledge that although monetary and other reentry assistance cannot return life to what it was pre-wrongful conviction, it can provide some peace of mind. Many exonerees, however, have been unable to obtain such support. Of the first 250 individuals exonerated through DNA testing, approximately 40% have not received compensation (Innocence Project, 2009). The lack of reentry assistance provided may be due in part to shortcomings in the existing statutory remedies for the wrongly convicted. The policies which make available such reintegration services, however, have generally not been studied by social scientists, and a full understanding of their strengths and weaknesses has yet to be developed. Though several legal scholars and advocacy groups have discussed the issue (e.g., Bernhard, 1999, 2009; Innocence Project, 2009), more methodical analysis is needed to understand the complexities of current policies. In this article, I begin to fill this void in the literature by providing an assessment of existing compensation statutes for the wrongly convicted in comparison to a model policy. First, I survey the national landscape to determine which states have compensation statutes in place and provide a detailed content analysis of existing statutes. I then assess the policies in relation to the model legislation offered by the Innocence Project, a large nonprofit organization based out of the Cardozo Law School, which works to secure postconviction DNA testing for inmates who claim factual innocence. This type of policy analysis can highlight the importance exoneration-compensation statutes and the limitations of those that do exist, providing a foundation on which to develop new policies and reforms to strengthen existing ones. Methods of Compensation Exonerees may obtain compensation in several different ways, including private bills, litigation, and compensation statutes. The first option allows a wrongly convicted individual to attempt to obtain a private compensation bill from the state legislature, the success rate for which is very low (Bernhard, 1999; Lonergan, 2008). Only 9% of Innocence Project exonerees have received compensation through private bills. Similarly, exonerees attempting to obtain compensation through litigation, via either tort law or civil rights doctrine, face a daunting task. Lawsuits are extremely difficult to win given the high burdens of proof required and the immunity protections Over the past 20 years, awareness of wrongful convictions has grown tremendously. Since 1989, there have been more than 300 exonerations of the wrongly convicted (Gross, Jacoby, Matheson, Montgomery, & Patil, 2005), including more than 265 through DNA testing (Innocence Project, http://www.innocenceproject.org), and 138 in capital cases (Death Penalty Information Center, http://www.deathpenaltyinfo.org). Introduction