Insight on the News - National
Issue: 04/01/03

Compensation for Injustice
By Timothy W. Maier

Saying sorry sometimes is not good enough. The wrongfully convicted want more than that. They want an equitable payday for the years they spent behind bars for crimes that they did not commit. But a majority of states have no compensation laws on the books and those looking for a check might as well forget it.

Media Credit: Jon M. Fletcher/AP-WWP
Juan Melendez is one of the 24 former death-row inmates in Florida who have been exonerated.
With states refusing compensation for injustice, exonerated former death-row inmates Ray Krone of Arizona, Juan Melendez of Florida and Kirk Bloodsworth of Maryland recently urged Congress to take a hard look at how the wrongfully convicted are treated. Melendez, who was sent to death row when police concealed a confession from the real killer, is one of 24 Florida inmates once on death row who have been exonerated. Florida has executed 51 people since 1973. That means the state has released as innocent one death-row inmate for every two it has executed.

Little wonder more than one-half of the U.S. House of Representatives and nearly one-quarter of the U.S. Senate have pledged support for the Innocence Protection Act (HR 912), a bill that would allow DNA testing and upgraded legal counsel for those facing the death penalty. It also would provide funds for states that allow compensation packages for the wrongfully convicted and additional funds for states that require police interrogations to be videotaped.

Consider what Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, had to say about the case of Krone, who spent a decade on death row in Arizona for a murder he didn't commit. "DNA evidence pointed squarely to the real killer in that case, a man who went on to sexually assault another woman while Ray Krone served time," Leahy remarked during a summer hearing on reforming the death penalty. "After more than a decade in state prison, Ray Krone got an apology from the prosecutor and $50, and he was sent on his way. Now, the official reporter transcribing this hearing and those watching C-SPAN might not believe what they just heard, so I will repeat it: After wrongfully spending 10 years, three months and nine-and-one-half days in prison, Ray Krone was given the sum of $50 to start his life over."

Compare that with parolees who actually committed the crimes for which they were imprisoned. They receive many taxpayer-paid services from counseling to job leads that enable them to return comfortably back into society. They often are moved humanely from maximum to minimum security, to work release or halfway houses or even home detention. Illinois defense attorney Bob Byman, who in 1996 helped exonerate Dennis Williams, one of four men wrongfully convicted of a brutal murder and sentenced to die in Cook County, put it bluntly: "We help the guilty prisoner more than we help the innocent guy who gets released."

Illinois has in recent years released more exonerated prisoners than it has executed, which prompted Illinois Republican Gov. George Ryan to announce a moratorium of executions and set up a commission that recommended 85 changes in the state's capital-punishment system.

This was triggered when Williams and three others, known as the Ford Heights Four, won a $36 million judgment after proving sheriff's deputies manufactured and concealed evidence. Was this a fair price for Williams' ordeal? Byman is not sure. He says, "Dennis told me that he went to bed every night knowing the state wanted to kill him for a crime he didn't commit."

Even so, such a judgment is rare because state laws make it all but impossible for the innocent to file lawsuits seeking compensation for the years they spent behind bars. Of some 88 inmates who have been exonerated and released because of the work of the New York-based Innocence Project, nearly two-thirds did not receive a dime. A recent review by the Associated Press indicates that 43 of 110 men exonerated received compensation. The compensation ranged from $25,000 in a Texas case to the $36 million civil judgment shared by the Ford Heights Four, who were incarcerated for a combined total of 65 years. Just 13 of the 110 collected $1 million or more from civil lawsuits.

Most find themselves in a similar position to A.B. Butler Jr., who spent more than 16 years in a Texas prison on a rape conviction. He was exonerated and freed in 2000 after DNA evidence proved he did not commit the crime. The state cut him a check for $27,854 for the mistake. With one-third of his life gone, his parents now dead and his marriage over, the value of his time in prison came to $4.60 a day.

"It's unfair," Byman says. "A poor person not only has liberty taken away from them, they have to start over. It's a terrible injustice that we add insult to injury. We compensate ordinary citizens for accidents, such as a $50 million judgment for coffee being spilled on someone's lap or someone being hit by a bus. So why doesn't the state machinery do the same when someone is deprived of their liberty? The political reality is this is a state-by-state decision and, unless Congress makes it a national issue, not many people are going to get compensated."

Adele Bernhard, a professor at Pace Law School in White Plains, N.Y., and a leading authority on compensation of exonerated prisoners, says the wrongfully convicted are even stigmatized. "We don't think of them as victims," says Bernhard, who is married to Peter Neufeld, one of the founders of the Innocence Project. "We think there has to be some reason the police picked on them or the police must know something else. It's pathetic they get nothing," she says.

As far back as 1918, Bernhard says, there was a movement in Wisconsin to compensate those wrongfully convicted. But, she says, "we can't seem to get the energy going nationally. There is no constituency to support legislation. There is no way the local government can buy any votes with this legislation." Bernhard thinks Washington might lead here in the same way it got all 50 states to set up compensation laws for those victimized by a crime. It simply withheld funds from states that refused to comply.

She urges the states to model programs after the one used by New York state, where a judge evaluates each claim and there is no cap. According to the state Court of Claims, of 165 claims filed since 1985, 131 were dismissed and 22 are pending. Only 12 former inmates have been awarded compensation, totaling $5,484,218.

Even a large judgment often is a hollow victory for those whose reputations were destroyed and lives erased for decades. They tend to have difficulties adjusting to a world in which they have not experienced the evolution of technology. Former inmates Insight interviewed say that upon release they were dumbfounded to see people get money out of a wall from an ATM or confused by a lavatory faucet with no handles that operates by a light sensor. Their experience has been frozen in another time.

Binny Miller, a law professor at American University in Washington who recently helped exonerate Marvin Anderson after 15 years in prison for a 1982 rape in Virginia, says, "It's like that person has been killed. You have to project backward sometimes 10 years to see what they might have become had their future not been robbed."

Bloodsworth, who was exonerated after a decade in a Maryland prison, including nearly three years on death row on a mistaken conviction for brutally killing a child, says he had the life sucked out of him. The ex-Marine says he now has high blood pressure, dental problems and no health insurance. "The state was ready to kill me," he said recently, "and I got $300,000!" That's $30,000 for each year he spent in prison.

Defense attorneys argue there are hundreds and maybe thousands of other inmates waiting to prove their innocence with new testing methods, but the legal process is so encumbered that many may never get that chance. Critics argue that if every inmate were allowed postconviction DNA testing where applicable, it would bankrupt the system. They point out that DNA tests cost as much as $2,000 per case.

DNA experts and Innocence Project founders Peter Neufeld and Barry Scheck say in their book, Actual Innocence, that the system is broken. They claim there is growing misidentification of suspects that has led to wrongful convictions. In fact, in 60 of the first 82 DNA exonerations, mistaken eyewitnesses played a major role in convicting an innocent person. As of today, DNA testing has uncovered stone-cold proof that 110 completely innocent people have been sent to prison and death row. Even so, the authors explain, in many of these cases "the criminal-justice system frees prisoners only after a torturous legal process." And, according to many trial judges, even "actual innocence" is not grounds for release from prison.

As for compensation, "many of them are completely screwed," Bernhard says. "You can always file a lawsuit, but it is really hard to win" because they must prove misconduct on the part of the police or prosecutor - especially difficult when state laws provide prosecutors and police immunity. This means most of the exonerated must rely on state laws for compensation. Only 15 states, the District of Columbia and the federal government have laws to compensate the wrongfully convicted. The rest pay nothing. Most of the 15 states have caps on what a former inmate can collect. The federal government has a limit of $5,000, whereas Texas has a $500,000 limit and California's cap is $100 per day of incarceration. Most states cap below $300,000, although New York state and West Virginia have no limit.

But there are other obstacles as well, including laws that require the governor to issue full pardons to former inmates even when DNA evidence has exonerated them. As for the federal government, the president must issue the pardon after a court finding of not guilty. Bernhard charges that a pardon request can be an "insurmountable barrier to recovery for deserving claimants because executive clemency is entirely discretionary." (Maryland is one state currently reviewing bills to eliminate the pardon.)

Walter Smith was a recipient of an Ohio justice-compensation package for the wrongfully convicted. A judge awarded him about $150,000, plus $90,000 for attorney fees after wrongful conviction for a series of rapes. Ohio has a $25,000 cap per year for the wrongfully convicted. Smith was exonerated after DNA evidence excluded him as the perpetrator. When Insight asked Smith if $25,000 a year was a fair price for his ordeal, he snapped, "It makes me angry when I think about it. I can't even sue the state for punitive damages!"

He can't sue because no prosecutorial or police misconduct could be proved, says his attorney, Dan Marinik. "There was no wrongful misconduct so the state had immunity," Marinik says. "The jury just got it wrong. Let's be honest, the eyewitnesses got it wrong." And "the cops in Columbus, Ohio, had seven unsolved serial rapes and tried to tie him to the crime."

When three eyewitnesses picked Smith out of a police lineup as the man who broke into their homes and raped them, "the judge bought the rapist charge hook, line and sinker," Marinik says. As a result, Smith was convicted in 1984 and sentenced to 190 years in prison. DNA testing was not available at the time, being used for the first time in an Ohio court in 1988.

From there, it was a hard road to get the prosecutor to agree to allow postconviction DNA testing. Finally, when Franklin County prosecutor Michael Miller boasted on a local call-in TV show that DNA could be used as a tool to solve crimes, Marinik decided to call the show and confront Miller in front of a live audience as to why he wouldn't use DNA to clear the air on the Smith case. Miller responded, "You got me. Let's do it."

Smith's attorneys then took the rape evidence to an independent DNA lab, and the results exonerated Smith as the serial rapist. Even then he had to wait for Miller to test the DNA again in the state lab, which also exonerated Smith. Meanwhile, the man believed to have committed the serial rapes is in prison on an unrelated charge but never will face the rape charges because the seven-year Ohio statute of limitations has expired.

Marinik didn't expect prosecutors to fight compensation, but they did. The staff of Ohio Attorney General Betty D. Montgomery - who now postures for DNA testing of death-row inmates - fought two appeals to the Ohio Supreme Court to try to avoid paying Smith. She lost both, but it took nearly nine years for this wrongfully convicted man to see a dime. In March 2001 he received his check and an apology from the mayor. Neither the police nor the prosecutors said a thing.

Timothy W. Maier is a writer for Insight. email the author