{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.