Executive Summary: “Making up for Lost Time: What the Wrongfully Convicted Endure and How to Provide Fair Compensation”

It’s an accepted principle of fairness in our society to compensate citizens who, through no fault of their own, have suffered losses. When a person’s land has been seized for public use, they receive adequate repayment. Crime victims and their families receive financial compensation in all 50 states. Yet, strangely, the wrongfully imprisoned, who lose property, jobs, freedom, reputation, family, friends and more do not receive compensation in 23 states of the nation.

For decades, many people, criminal justice professionals included, didn’t acknowledge the extent of error in the criminal justice system or that wrongful convictions occurred. DNA testing has changed that. As of this writing, more than 240 people have been proven innocent and exonerated through post-conviction DNA testing. They spent on average 13 years, and as many as 31 years, in prison. Forty percent of them have not received any compensation, and many more received only a paltry amount that fell far short of repaying their losses or helping them get re-established in the free world.

The Exonerated Person’s Ordeal and Why It Has Been Ignored

Psychological research of the wrongfully convicted shows that their years of imprisonment are profoundly scarring. Many suffer from post-traumatic stress disorder, institutionalization and depression, and some were victimized themselves in prison. Physically, they have aged ahead of their peers, and often their health has suffered from years of sub-standard prison health care. Professionally, they lag far behind, lacking the job experiences, and vocational or educational training to be competitive in the workforce. Many have never used a computer, cell phone or even an answering machine. Family members have passed away, children have grown, spouses and partners have moved on. The exonerated are released into a world that has changed dramatically from the one they knew, and they too have dramatically changed.

States offer little to no immediate support services to help with the transition. Exonerated people who live in one of the 27 states that has a compensation law may file for state compensation, but the average length of time exonerees wait to receive funds is almost three full years. In the meantime, the exoneree may lack a source of income, a means of transportation, health coverage and a stable home. Even from the first joyous day of release, exonerees face the immediate crisis of where to sleep, how to eat and how to provide for themselves.

The state should immediately extend a helping hand and provide the compassionate assistance necessary for exonerees to pick up the pieces and rebuild their lives. Instead, some states leave exonerees no other option but to sue. Lawsuits are not a viable alternative to state compensation; they require a long, protracted legal battle with no guarantee of assistance once it’s over.

Only 28% of DNA exonerees have won lawsuits; thers have tried and failed. Success depends on the exoneree’s ability to show that his wrongful conviction was caused by intentional misconduct and to name the responsible party. Under this system, some exonerees get compensated, but many others don’t. Everyone is deserving.

State compensation statutes present a better alternative. Only state government can provide reliable, fair and immediate assistance to the exonerated. In fact, it is their responsibility to do so. Although the wrongfully convicted are especially deserving of assistance, they have historically been overlooked perhaps because they are predominately poor, minority and underrepresented in state and local government. Of the over 240 people exonerated through DNA testing, 70% are people of color.

A Slow but Steady Change in Attitude

At last, in recent years, states have begun to recognize a responsibility to the wrongfully convicted. In the last decade, 13 additional states have adopted compensation statutes. In addition, many states have improved existing laws to raise the amount of financial assistance available and also to include a provision for support services like job training, educational waivers, housing assistance and health coverage. Ten states now provide such services.

However, the 27 existing compensation statutes vary greatly—from a flat maximum total of $20,000 regardless of the number of years spent wrongfully imprisoned in New Hampshire, to $80,000 per year of wrongful imprisonment with no maximum total in Texas. The state of Montana offers no money at all, only educational aid to be used in the state university or community college system. Only five states meet the federal standard of up to $50,000 per year of wrongful imprisonment.1 Other states deny funding to applicants who falsely confessed or pled guilty, and still others deny funding to applicants who were exonerated without the benefit of DNA testing.

Eligibility for funding under compensation statutes is already significantly restrictive. The exoneree must be able to show that she served time in prison for a crime she didn’t commit. DNA testing is the surest way of proving innocence, but it is not available in every case. Therefore, the applicant must show that the prosecution has dropped the charges, or that she was found not guilty on re-trial, or that the governor has issued a pardon. Having a conviction overturned based on a legal technicality would not be enough to qualify for compensation.

Applicants must have documentation that demonstrates actual innocence, and a small number of people qualify.

The Innocence Project’s Recommendations

For those few qualified applicants, the state should readily and generously offer assistance. No amount of money can make up for the lost years, the trauma of prison life, or the horrible experience of being falsely branded a murderer, rapist or thief. But compassionate state assistance can at least help bring the exoneree’s struggle to an end by providing him with the finances to find a home, see a doctor, get job training and counseling, and attempt to make a new life for himself.

These recommendations for state compensation laws have been developed by the Innocence Project after years of working with exonerees and their families, legislators, social workers and psychologists:

• Provide a minimum of $50,000, untaxed, per year of wrongful imprisonment and $100,000, untaxed, per year on death row. This amount is based on the federal government’s standard created through the Innocence Protection Act of 2004.

• Cover limited and appropriate attorney’s fees associated with filing for compensation.

• Provide immediate services including housing, transportation, education, workforce development, physical and mental health care through the state employee’s health care system and other transitional services.

• Issue an official acknowledgment of the wrongful conviction.

The support outlined in these recommendations is essential for exonerees’ ability to reestablish a life for themselves. Equitable, immediate, comprehensive assistance like this is not available to exonerees through any other means. By fairly compensating those who have suffered under the criminal justice system, the state reassures its citizens that the government will attempt to rectify a wrong—whether the state is at fault or not. In short, it’s the right thing to do.

This report details the specific obstacles that exonerees face, the lack of support they currently receive, and how compensation statutes in many states have not done justice to the wrongfully convicted. It also presents solutions to these shortcomings and gives examples of how exonerees have used state compensation to find housing and meet other urgent needs, nurture talents, find success, and get their bearings in the free world.

Download the full report here. (PDF)