Justice: Denied -- The Magazine for the Wrongly Convicted




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{Editor's note: Dr. Susan Sarnoff debuts in the pages of Justice Denied with two entries. One is her story about Ron Tijerina's wrongful conviction, and this most timely writing about compensating the wrongly convicted. It is timely because more than ever, we've seen an increase in the numbers of people released due to wrongful convictions -- a population that deserves whatever we can give them, although it will never be enough. It's probably safe to say that Dr. Sarnoff is among the first of many who will put this issue before the public -- an issue calling on the conscience of every person with compassion for the wronged. C.A.T.B.}

Compensate the Unjustly Convicted

By Susan Sarnoff, DSW

On December 9, 1998, the New Zealand Ministry of Justice instituted a system to compensate people whose convictions of crimes had been overturned on appeal. This precedent-setting act went completely ignored by the American media. Thirty-five years earlier, when New Zealand became the first country in modern times to institute a system to compensate crime victims, the American media ignored that as well. Yet a mere five years after that, both California and New York established victim compensation programs.

As is typical in the United States, it took 24 years and a federal matching incentive for all the states to develop victim compensation programs. Prior to the development of these programs, tort law allowed victims to appeal to the courts for compensation. Victim compensation is easier to obtain and is much more timely than civil litigation and victim compensation. Unlike Workers' Compensation. it does not preclude lawsuits for further damages.

Therefore, it is a very hopeful sign that both the Senate and House have recently introduced bills (S. 2073 and H. 4078, respectively) that will not only provide automatic compensation in cases of federal convictions later proved innocent, but also will require states to provide compensation in death penalty cases later reversed due to innocence. The bill also creates an incentive for states to develop or enhance existing means to provide compensation to those whose wrongful non-capital convictions were later overturned due to innocence by tying these policy changes to receipt of federal prison construction funds.

Precedents for compensating the wrongfully convicted exist in federal law and the laws in 14 states and the District of Columbia, albeit with severe limitations on conditions and maximum awards (as is also true with victim compensation). These limitations include brief time limits for filing and strict standards of proof of innocence. As is also true of victim compensation, there are exceptions to these generalizations -- New York, West Virginia, and the District of Columbia have no limit on award maximums, for instance. Also like victim compensation, these statutes do not prevent the unjustly convicted and the falsely accused from using tort law to sue government agencies and entities for false imprisonment, civil rights violations, libel and defamation. One such example is that of Anthony Porter, who recently received $145,875, the maximum allowable under Illinois's compensation statute -- but still plans to sue Chicago under tort law.

Often, however, when faced with the likelihood that an appeal would lead to acquittal, prisoners are instead offered pardons that fail to acknowledge their innocence; and prisoners often jump at the opportunity to be released without the rigors and delay of another trial. Many regret this later, however, not only because they are then ineligible for compensation, but because it is often also construed that they have been released on "technicalities," rather than being exonerated because they were not guilty in the first place.

Frankly, few innocent people who were wrongfully incarcerated consider financial compensation in any amount adequate repayment for time spent behind bars -- or even sentenced to capital punishment. As former death row prisoner Perry Cobb (one of the Illinois Nine profiled in David Protess and Rob Warden's 1998 book, Nine Lives), observed at the conference on Wrongful Executions and the Death Penalty Conference at Northwestern University in November 1998, "No amount of money can repay the loss of seeing my children grow up -- they can keep the money, but give me the minutes back."

Yet compensation is a practical necessity for many ex-prisoners, who find that even proof of innocence does not reintegrate them into society, after having lost contacts in their fields of employment, having had their skills become rusty with nonuse -- and often having lost faith in humanity after their ordeals. From a public policy standpoint, the threat of having to pay compensation makes jurisdictions much more concerned about deterring wrongful convictions in the first place. As Peter Huber noted in his 1991 book, Galileo's Revenge (in which he coined the phrase "junk science") civil litigation is most effective as a threat that encourages solving problems by other means.

One clear example of this is Illinois Governor George Ryan's call to halt executions in that state because of the number of Illinois death row inmates that have recently been found to be innocent. While Governor Ryan has been the first governor to acknowledge the possibility that innocent people sit on death row (unlike Governor George W. Bush, who appears to believe that Texas's reviews of capital sentences are foolproof), there has been considerable attention to unjust convictions over the past few years. In addition to Protess and Warden's book, these include the film Hurricane, and the National Institute of Justice's own publication of Convicted by Juries, Exonerated by Science. And of course, most of the publicity focuses on those cases that are proved innocent -- no one knows how many requests for appeals, retrials, and other forms of review have been denied or rendered impossible due to inadequate records of objection, inability to locate witnesses, or the post trial loss or destruction of evidence. That is why the development and expansion of the Innocence Project (which originally worked only on capital cases), the work of Centurion Ministries, and of course, the publication of Justice Denied Magazine are so vital.

Most recently, a study by Columbia University Professor James S. Liebman found that two-thirds of death penalty convictions were overturned due to serious errors by defense attorneys, police officers, or prosecutors. (The rate was a lower but still considerable 52% in Governor Bush's state of Texas.)

One argument for automatic compensation is that it could dissuade some unjustly convicted people from suing for damages far greater than those they might obtain from a compensation program. This is not unrecognized -- those released from prison after pardons or other forms of exoneration are often offered compensation in exchange for agreeing not to litigate for further compensation. The case of Jenny Wilcox, who spent 12 years in an Ohio prison on the coerced testimony of three young boys, exemplifies this: Jenny was offered $300,000 -- if she would hold the state harmless from other damages.

Compensation may not -- and should not -- impede wrongfully convicted people from filing tort suits. But a well-crafted compensation plan would give some of the unjustly convicted who are later exonerated timely financial assistance to help them rebuild their lives and demonstrate the balance that is supposed to characterize the justice system. This in turn might reduce their quite justifiable anger at the system, which might also reduce the likelihood of "revenge" lawsuits. One way to effect such a plan might be to establish a reasonable, capped amount automatically payable to any former inmate pardoned for cause (as opposed to mercy) -- with strict requirements that governments admit those causes when they exist. This compensation should focus on harm to the former prisoner rather than blame to the system, not only to increase the likelihood that it would be supported by legislatures, but also to differentiate it from other remedies.

To be fair, a justice system must strive to be accurate -- but it must also recognize its imperfections and account for them. This means that it must allow for the possibility of error:

  • By reviewing all serious convictions to determine the possibility of error.
  • By admitting errors when they occur.
  • By holding "post mortems" on erroneous cases to determine how the errors occurred and feed that information back to the system so they can be avoided in the future.
  • By eliminating irreversible sentences, such as capital punishment.
  • By preserving evidence until all levels of appeal are exhausted.
  • By considering every reasonable request for appeal, retrial and review.
  • By paying the price for its errors by compensating the innocent.

Supporting S. 2073 and H. 4078 is an important first step -- and only a first step -- toward ensuring justice for the innocent. Our legislators need to know this.

Dr. Susan Sarnoff is Assistant Professor and Graduate Chair at the Ohio University Department of Social Work. She is the author of Paying for Crime: The Policies and Possibilities of Crime Victim Reimbursement, and the forthcoming Sanctified Snake Oil: How Junk Science Distorts Public Policy, both published by Praeger. She is eager to hear from people interested in advocating for compensating for the unjustly convicted and can be reached at Sarnoff@ohio.edu.


Justice Denied



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