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Compensating the Exonerated: State Laws Are Arbitrary and Senseless

by Christopher Zoukis

October 2nd of each year marks the Annual International Wrongful Conviction Day. As of October 2, 2017, the third anniversary of the commemorative event, 351 people have been exonerated based on DNA analysis alone. Those 351 served an aggregate 4,788 years in prison prior to exoneration. DNA exonerations are just the tip of the iceberg; the United States is a world leader in convicting and imprisoning its citizens for crimes that they did not commit.

The Innocence Project tracks the data associated with wrongful convictions. To mark the 2017 Annual International Wrongful Conviction Day, researchers with the Innocence Project looked at how state governments compensate those who have been exonerated. The analysis revealed a patchwork of laws and processes that vary greatly from state-to-state and, in some cases, are absurdly unfair.

Initially, it’s worth noting that 18 states have no compensation laws at all. Of the 32 states that have some mechanism in place, compensation ranges from $5,000 per year of incarceration with a maximum of $25,000 total (Wisconsin) to $80,000 per year with no ceiling and an annuity set at the same amount (Texas). Shame on Wisconsin; that’s insulting.

When an exoneree lives in a state without a compensation statute, he or she must pursue a lawsuit in order to obtain damages for wrongful conviction and imprisonment. Eddie Lowery, who lives in Kansas—a state that does not compensate—was profiled in the Innocence Project report, and his plight was covered by PLN in February 2016.

Lowery was convicted of a sex offense that he did not commit. He was exonerated in 2003 after spending 10 years in prison and an additional 11 years on the sex offender registry. Times were tough for Lowery in the immediate aftermath of his wrongful incarceration.

“I couldn’t find a good paying job,” said Lowery. “I had to go on food stamps to take care of my son. And there were other needs too, such as health insurance.”

Because Kansas does not have a compensation statute, Lowery was forced to resort to civil litigation. During the many years that his lawsuit dragged on, Lowery remained subject to the stigma of a felonious sex offender. And he struggled to survive.

“When a person is wrongfully convicted, they’re stripped of everything,” explained Lowery. “So, when they’re freed and exonerated, they have nothing. They have to rebuild their lives from scratch. But, without having a compensation statute, it can feel impossible to do.”

Several of the 32 states that do provide compensation award extraordinarily miserly sums. In Illinois, for example, where Jerry Miller spent 25 years in prison for crimes that he did not commit, compensation is limited to an arbitrary $199,150. That’s what the state gave Miller in exchange for a quarter century of his life, and it took a fight to get even that meager amount.

“I worked with Loyola University’s Life After Innocence in downtown Chicago,” said Miller. “Every week we would do something around getting the compensation—filing papers, figuring out how to attack this process. To get compensation, I had to get a certificate of innocence from the governor; it wasn’t automatic. It was a chase.”

After Miller received his paltry compensation, he filed a civil lawsuit and prevailed. But according to the Innocence Project, only about one-third of all DNA-based exonerees file such a suit. To win such a suit, proof of official misconduct during the process that led to conviction must be shown.

There is one state among the 32 that should serve as a model for the country, and it may surprise some to learn that it is Texas. In the Lone Star State, there is no ceiling on compensation, and in addition to a lump sum of $80,000 per year of incarceration, exonerees receive an annuity of the same amount for life. Cornelius Dupree, who spent 26 years in prison for a crime that he didn’t commit, described the difference compensation made as he reestablished his life.

“[A]fter I was compensated, we were able to buy a home. We purchased a car. It changed our whole lifestyle. My wife was able to retire. Our life has been fun ever since. It’s a great feeling to be in a position where we don’t need money.”

However, make no mistake about it—Dupree didn’t win the lottery. He was provided compensation in exchange for spending two and a half decades of his life locked away in prison for a crime he did not commit. Dupree and all other exonerees deserve to have the years stolen from them returned. But since that is not possible, full and fair compensation is the best our system can do in helping them move forward after having their life irrevocably shattered.

“It’s impossible to right the wrong of wrongfully incarcerating someone for a great deal of their life for a crime they didn’t commit,” said Dupree. “To me, money is just a band-aid; it doesn’t rectify the problem or the situation, but it certainly helps when starting a new life.” 


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