Innocence Project Compensation for Wrongfully Convicted Report

Innocence Project Compensation for Wrongfully Convicted Report

• Topics: Sentencing, Wrongful Conviction

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MAKING UP
FOR LOST TIME:

WHAT THE WRONGFULLY CONVICTED ENDURE
AND HOW TO PROVIDE FAIR COMPENSATION
AN INNOCENCE PROJECT REPORT

BENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY

CONTENTS
BOARD OF DIRECTORS
Gordon DuGan
President and Chief Executive Officer,
W.P. Carey & Co., LLC
Senator Rodney Ellis
Texas State Senate, District 13
Board Chair
Jason Flom
President, LAVA Records
John Grisham
Author
Calvin Johnson
Former Innocence Project
client and exoneree;
Supervisor, Metropolitan Atlanta
Rapid Transit Authority
Dr. Eric S. Lander
Director, Broad Institute of MIT and
Harvard Professor of Biology, MIT
Hon. Janet Reno
Former U.S. Attorney General
Matthew Rothman
Managing Director and Global Head of
Quantitative Equity Strategies,
Barclays Capital
Stephen Schulte
Founding Partner and Of Counsel,
Schulte Roth & Zabel, LLP
Board Vice Chair
Bonnie Steingart
Partner, Fried, Frank, Harris,
Shriver & Jacobson LLP
Andrew H. Tananbaum
President and CEO,
Capital Business Credit, LLC
Jack Taylor
Head of High Yield Debt,
Managing Director,
Prudential Real Estate
Board Treasurer
Paul R.Verkuil
Of Counsel,
Boies, Schiller & Flexner LLP
Rachel Warren
M.K. Enterprises, Inc.

1. EXECUTIVE SUMMARY................................................................................................ 3
The Exonerated Person’s Ordeal and Why It Has Been Ignored....................................... 3
A Slow but Steady Change in Attitude........................................................................... 4
The Innocence Project’s Recommendations..................................................................... 5
2. EXONERATION IS JUST THE BEGINNING...................................................................... 6
A Case History............................................................................................................. 6
Obstacles Exonerees Face............................................................................................. 7
$40 and a Pair of Pants............................................................................................... 9
3. AVAILABLE OPTIONS FOR THE EXONERATED..........................................................12
Lawsuits................................................................................................................... 12
Private Bills............................................................................................................... 13
Statutes.................................................................................................................... 13
4. EXISTING SHORTCOMINGS OF COMPENSATION STATUTES........................................ 15
Limited Monetary Assistance...................................................................................... 15
No Social Services...................................................................................................... 15
Assistance is Not Immediately Available...................................................................... 17
Excluding People Who Have Falsely Confessed or Pled Guilty........................................ 18
Excluding People Who Have Prior Convictions.............................................................. 19
5. PROVIDING COMPASSIONATE ASSISTANCE...........................................................20
Recommendations...................................................................................................... 20
Where It’s Working................................................................................................... 21
Success Stories.......................................................................................................... 22
Fair Compensation for All........................................................................................... 24
ENDNOTES.................................................................................................................... 25
APPENDIX A:
Compensation Statutes by State..................................................................................... 27
APPENDIX B:
Model Legislation, 2010 State Legislative Sessions
An Act Concerning Claims for Wrongful Conviction and Imprisonment................................. 32

EXECUTIVE SUMMARY
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 posttraumatic 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.

EXECUTIVE SUMMARY

Only 28% of DNA exonerees have won lawsuits;
others 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.

INNOCENCE PROJECT
SOCIAL WORK PROGRAM
The Innocence Project’s work doesn’t
stop at exoneration. Our social work
program designs a support plan for
each of our exonerated clients and
provides transitional services and
financial assistance in the first year
after release. Innocence Project social
workers then continue to work with
clients for as long as they’re needed,
helping exonerees build life skills
and achieve independence. Since
the program’s inception in 2006, the
Innocence Project has provided postexoneration assistance to 60 clients in
18 states.

THE INNOCENCE PROJECT

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:

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.

• 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.

EXECUTIVE SUMMARY

EXONERATION IS JUST THE BEGINNING
A Case History
Calvin Willis, a 22-year-old newlywed and young
father living in his hometown of Shreveport,
Louisiana, came home from work one day in
June 1981 to hear that two police officers had
been over to his grandmother’s house asking
for him. They were investigating the rape of a
10-year-old girl, who had been assaulted while
babysitting for two younger girls. The younger
girls, who were familiar with Calvin Willis,
mentioned him in their interviews with police.
Willis reported to City Hall where a detective
told him that he was wanted for aggravated rape.
That day marked the beginning of his wrongful
imprisonment. He was arrested and sent to jail
where he would remain until his trial months
later. At trial, the prosecution presented the
eyewitness testimony and blood type testing
results. According to the results, Willis, along with
a significant portion of the African-American
population, could have committed the crime.
Willis says, “I was found guilty. The judge asked
me to come to the bench when I come back for
sentencing. He asked me, ‘Is there any thing
you’d like to say?’ I said, ‘No, except that I’m
innocent.’ He sentenced me to life in a Louisiana
State Penitentiary without the benefit of parole.” 2
Willis was transferred to the infamous Angola
Penitentiary, where he made an effort to keep
to himself and avoid conflict. “It could really,
literally scare you to death,” he says.3 In 1996,

THE INNOCENCE PROJECT

he learned of the Innocence Project and wrote
a letter asking for help. Three years later, the
DNA evidence in his case had been located
and the District Attorney agreed to consent to
DNA testing. At the time, the Innocence Project
didn’t have the financial backing to cover the
costs of testing as it does today so Willis and his
supporters raised the $14,000 required to have
the testing done.
In 2003, after over 21 years of wrongful
imprisonment, Willis was proven innocent and
released. He had trouble adjusting. “It had
been so long since I’d been outside and seen
the stars and hills that when I got out and it was
nighttime, it scared the hell out of me.” 4
By that time, his grandfather, who raised him,
had died. His wife had remarried and his
children had grown up.
Surely, no amount of money could make up for
the hardship that Willis experienced. His loss
is unfathomable. Willis may not be able to get
those years back, but he can be given a brighter
future. The question is: What does he need to
get readjusted—psychologically, physically and
financially?

“When you are in prison for as long as I was,
people either think you must be guilty or at
least damaged. It’s been lonely. Very lonely.”
Exoneree Michael Williams who was released with $10
and a bus ticket, Wall Street Journal, October 30, 2007

Percentage of People Exonerated Through DNA Testing Who Have Been Awarded Compensation*

100% , - - - - - - - - - - - - - - - - - - - - - - - 80'/0 f - - - - - - - - - - - - - - - - - - - - - - 60%

60%
40%
20%
0%

Any compensalion

Siolule

Civil suit

Privote bill

* Percentages per type of compensation add up to more than 100% because each category
includes exonerees who received two forms of compensation.

Obstacles Exonerees Face
Long after the prison cell door has opened, the
psychological impact of wrongful imprisonment
distances exonerees from friends, family and
a society that takes freedom for granted. The
average number of years spent in prison by
those who have been wrongfully convicted and
exonerated through DNA testing is 13. Darryl
Hunt, who was wrongfully convicted of murder
and spent over 18 years in prison before his
exoneration through DNA testing explains,
“I’m physically free, but psychologically I’m still
confined.” 5
I. Psychological
Hunt speaks to what social scientists call
institutionalization. Even after he’s free, the
former prisoner struggles to shake those
adaptations that made it possible to survive
in a hostile environment. The regimented
daily routine of prison life has made him
unaccustomed to making his own decisions.

The violence of prison life has led to social
distancing, emotional aloofness, and a
lack of positive social skills. The lack of
opportunity and alienation from the outside
world has resulted in low self-esteem.6 Not
all former prisoners suffer from the effects of
institutionalization, but in recent decades as
prison policies have become more restrictive,
and prison populations more overcrowded, its
effects have become widespread—particularly
for innocent people forced to endure these
adverse conditions.7
Post-Traumatic Stress Disorder (PTSD),
common among war veterans, also affects the
wrongfully convicted. Almost all prisoners
have witnessed violent acts or been victimized,
and memories of these experiences can be
re-traumatizing. A person suffering from
PTSD may have trouble sleeping, recurrent
nightmares, difficulty concentrating. He may be
irritable, angry or hypervigilant—always tense
and alert.8 “I dream too much about it all,” says

EXONERATION IS JUST THE BEGINNING

exoneree Carlos Lavernia. “Too much. Almost
every day. All the pain. I don’t want to go
nowhere. I still got it on my mind. All the time I
stay in my apartment complex.” 9
All prisoners are vulnerable to psychological
problems. Exonerees also struggle with the
psychological dissonance of having been
profoundly wronged by society. Those who
served long prison terms or were wrongfully
convicted at a young age are the most affected.
During their periods of wrongful incarceration,
friends and family have gotten married, children
have grown, parents and grandparents have
passed away. Grievous losses and feelings of
“what might have been” follow the exonerated
throughout their entire lives. In 2007, The New
York Times researched 137 cases of people
whose wrongful convictions had been overturned
through DNA testing and found that most “have
struggled to keep jobs, pay for health care,
rebuild family ties and shed the psychological
effects of years of questionable or wrongful
imprisonment.” 10

“One big fear is that, really, that I’m just
dreaming, that I’m not really here in the
apartment right now. That maybe my mind
couldn’t really deal with being in prison any
longer.”
Exoneree Jeffrey Deskovic being interviewed in his
apartment, The New York Times, November 25, 2007.

II. Physical
Medical care provided to prisoners is
notoriously poor, exacerbating existing
conditions and leaving others untreated.

THE INNOCENCE PROJECT

A 50-year-old prisoner has been found to have
the health of a 60 year old in the free world.11
Given the lack of available healthcare, many
exonerees find that they have less coverage
than they had in prison. Even exonerees that
are eligible for government supported health
coverage may find that the bureaucracy and
paperwork involved is enough to effectively
prevent them from receiving it.
By the time Roy Brown was exonerated, he was
dying of liver disease and expected to have only
a matter of weeks left to live. As a prisoner, he
had been told that he was not eligible for the
organ transplant that could save his life, and as
a free man, he had no health insurance. The
Innocence Project worked with local services
to ensure that Medicaid would cover his urgent
health needs. Four months after his release,
Brown received a liver transplant in May 2007.
Exonerees do not automatically qualify for
Medicaid, and very few states offer it to them.
Moreover, the types of jobs they can secure are
often low-wage and temporary without health
benefits.
III. Financial
Many exonerees were wrongfully convicted in
their youth, while their peers were advancing
their careers or getting an education. After
a decade or more in prison, exonerees find
themselves starting over at an older age.
Exoneree A.B. Butler says, “When I went to
prison, I was 28 years old, and you know, you
make up your mind on what you’re going to do
with your life in your thirties, and you’re still able
to get out there and do it, whereas I’m in my
fifties now. I can’t really work as hard as I could
back when I was in my twenties and thirties. I just
try the best I can.” 12

Median State Compensation Amount Per Year*
(based on number of years served)

$800,000,---------------------$618.182
$700,000 1 - - - - - - - - - - - - - - - - - - - ' - ' - - - ' - " - ' - - ' - - - $600,0001-------------$500,0001-------------$400,0001-------------$300,0001-------------$200,000 f---;::2'"'4-::.2"C:19= - - - - - - - - - - - - $100,000 1 - - - - - - - - - - - : - - - : - - - $0 L
----":.cI.:::.42:.:9~
_
Median amount per yeor

Minimum per year

Maximum per year

based on number of years served
* Median provides a more accurate representation than average since maximum and minimum amounts vary so greatly.
There are few professional opportunities for
prisoners. While many exonerees have held jobs
in prison as janitors, cooks, or laborers, most
have not developed specialized skills. In the
mid-1990s, secondary educational programs for
prisoners, namely bachelors and masters degree
programs and many vocational programs, were
severely cut. By 2005, post-secondary education
programs were reaching only 5% of prisoners
nationwide.13 The average exonerated person
has no higher than a high school education,
little to no experience with computers or
modern technology and is far behind his peers
in the workforce.
Some exonerees face other extraordinary
financial obstacles as a result of their wrongful
conviction. After serving nearly 10 years in prison
for a crime he didn’t commit, David Shephard’s
wages were garnished for failing to pay child

support because his girlfriend and their son had
been on welfare for a year while he was away. 14
Larry Peterson was expected to retroactively pay
for his own public defender. The New Jersey
Public Defender’s Office put a lien (a claim on
property or personal assets) on Peterson to pay
for the cost of representing him. Peterson had to
undergo litigation to have the lien removed.

$40 and a Pair of Pants
“You have everything taken away from you and
then you’re dumped back off on the street…
there’s just no support…what do you do?” asks
Brandon Moon who was exonerated in 2005
after 17 years in prison.15 Many people assume
that exoneration involves some automatic
compensation, state-sponsored support or
other available resources. In fact, exoneration
guarantees only one thing—release from prison.

EXONERATION IS JUST THE BEGINNING

In 2006, the Innocence Project developed a
social work program that assists Innocence
Project clients in the first year after release.
Immediate concerns—clothing, housing,
emergency financial assistance—are covered
by the Innocence Project’s Exoneree Fund.
Nationwide, member groups of the Innocence
Network help generate community support,
working with exonerees and their families.
Without the support of private citizens and nonprofit advocacy organizations, most exonerees
would be entirely on their own. Exonerees
without family face a particularly difficult release.
Services available to parolees in many states,
including job placement and temporary housing,
are not available to exonerees. Upon his release,
David Shephard sought help from four agencies
that provided services to ex-offenders. Each
agency responded that he could not receive
their services since he had not committed a
crime.16 Re-entry services provide an essential
safety net for formerly incarcerated people as
they transition back to the free world. Parolees
need this assistance to get a strong footing and
become active, contributing members of society.
It defies comprehension that such services
would not also be available to exonerees who
face all the same obstacles, in addition to the
psychological effects of wrongful imprisonment.
As Roy Brown put it, “When you get out of prison
they give you $40 and a pair of corduroy pants,
but that’s only for the guilty people. I didn’t even
have anything to wear.” 17
To make matters worse, exonerees are saddled
with the responsibility of continually having to
explain their exonerated status to prospective
employers, landlords, and others who identify
them as “ex-cons.” Because the wrongful

THE INNOCENCE PROJECT

INCALCULABLE LOSSES
• Calvin Willis’ fees from the trial
and post-conviction proceedings:
$14,700 18
• Louisiana per capita personal
income in 1982 when Calvin
Willis was wrongfully convicted:
$10,560 19
• Estimated lost income for 21
years: $382,378 20
• Value of good health care: ?
• Value of job skills and educational
opportunities: ?
• Value of building lasting
friendships, business partnerships
and romantic relationships: ?
• Value of time with aging parents,
grandparents and other loved
ones: ?
• Value of raising one’s own
children and opportunity to have
children: ?
• Value of personal achievements
and contributions to society: ?

conviction is not automatically expunged from
the exoneree’s criminal record, he may be
denied a job or housing based on a background
check. Expungement is a separate legal process
that can take many months or even years
to complete depending on the state; in the
meantime, rape and murder convictions will
continue to show up in the system even if those
convictions have been overturned. Exoneree

Keith Turner says, “I keep a copy of my pardon
on me. Every job, you have to explain yourself.
You have to put it on there—rape conviction—
because they check it. I always write, ‘I’ll explain
at the interview.’” 21 Not all exonerees have a
pardon to show; many resort to carrying a news
article about their exoneration.
Many employers are not willing to take a chance
on hiring someone who has been in prison—
innocent or not. “You would be surprised at how
many people don’t know what exoneration is,”
Calvin Willis says. “The thing of it is that you’ve
been to prison. You’ve been exposed. Being free
is one thing, but you’ve also experienced being
around the criminalistic environment. That
right there is like you been contaminated.” 22
Exonerees get the worst of both worlds—the
stigma of prison, with none of the support
services available to those who have served time.
When Willis was released in 2003, Louisiana
had no law compensating exonerated prisoners.
Since then, the Louisiana Legislature has
enacted a compensation statute offering $15,000
per year of wrongful incarceration with a
maximum amount of $150,000. Willis received
an additional $40,000 for job training and
tuition. The total award of $190,000 comes to
approximately $9,000 for each year that Willis
lost. Willis waited six years to receive the money.

EXONERATION IS JUST THE BEGINNING

AVAILABLE OPTIONS FOR THE EXONERATED
In his 1932 book, “Convicting the Innocent,”
Yale Law Professor Edwin Borchard wrote, “It
seems strange that so little attention has been
given to one of the most flagrant of all publicly
imposed wrongs—the plight of the innocent
victim of unjust conviction in criminal cases.” 23
“Convicting the Innocent,” which describes
dozens of cases of wrongful conviction from all
over the country, closes with a lengthy argument
for compensation.

“What we generally do in America when
someone’s been hurt is, we give them
money.... Yet here are people who have
been hurt as an inevitable byproduct of
the criminal justice system, which is a
government benefit that we all are entitled
to and expect. These are sort of like the
collateral consequences, and no one’s taking
responsibility for them.”
Pace Law School Professor Adele Bernhard,
PBS Frontline, May 1, 2003

Compensation options for the wrongfully
convicted have not improved much since then.
In 1932, three states had compensation statutes;
today there are 27. But even in those 27 states, the
assistance for exonerees is limited. In 1932, just as
today, wrongfully convicted people in states without

THE INNOCENCE PROJECT

compensation systems had other alternatives. They
could seek assistance through a lawsuit or private
legislation. Borchard argued that these alternatives
were inadequate and fell short of the state’s
moral obligation to the wrongfully convicted. His
reasoning still applies today.

Lawsuits
Lawsuits for civil rights damages are completely
different from state compensation. State
compensation is the right thing to do in all
cases; lawsuits are for the few exonerees who can
prove that they are also victims of intentional
government misconduct. Only a minority of
cases qualifies; for example, cases in which police
officers intentionally fabricated evidence, coerced
a confession or intentionally withheld evidence
from prosecutors. In most cases, there is no
intentional misconduct that caused the wrongful
conviction, or at least, none that can be proven.
Prosecutors and judges have “absolute immunity”
and are completely shielded from lawsuits
brought by wrongfully convicted individuals.
The U.S. Supreme Court has ruled that this
immunity is necessary to ensure that people
in these positions can do their jobs without
fear of personal legal implications. Therefore
a prosecutor is not liable for anything he does
in his official capacity: deciding whether to
prosecute, examining witnesses, plea bargaining,
etc. 24

The financial awards exonerees receive through
lawsuits often surpass those available through
state compensation statutes. However, lawsuits
are also more expensive, and part of the award
money will be spent on litigation fees. In addition,
lawsuits are more time-consuming and take
longer to finalize. After years of fighting to prove
their innocence, exonerees need a safety net, not
another long legal battle. Winning a lawsuit can’t
help exonerees find jobs, counseling, medical
care, educational aid and other essentials they
need for a successful transition.

Private Bills

states, or even within states, and awards can vary
wildly without apparent reason.
For example, Florida has awarded compensation
through private bills to two men out of 10 whose
wrongful convictions were overturned through
DNA testing in that state. In 2005, Wilton Dedge
was awarded $2 million for 22 years of wrongful
imprisonment. Three years later, exoneree
Alan Crotzer also received assistance through a
private bill, but he received only $1.25 million
though he served nearly 25 years in prison.
That works out to $90,000 per year of wrongful
imprisonment for Dedge, but about $50,000 per
year for Crotzer.

If an exoneree can’t file a lawsuit and her state
has no compensation statute, she can try to
convince a legislator to introduce a private
bill on her behalf. The shortcomings of this
approach are immediately obvious since most
exonerees lack the political savvy or the political
connections necessary to make their voices
heard. Furthermore, having to convince the
legislature of the need for compensation puts
the exonerated person in the uncomfortable
position of lobbying for her own support. She
has finally proven her innocence; now she must
also prove herself worthy of assistance.

Only 9% of the more than 240 people who have
been exonerated through DNA testing received
compensation through private bills, making
it the least likely remedy for the wrongfully
convicted. Amounts have ranged from $1,600
per year of wrongful imprisonment to nearly
$300,000 per year. The intent of private bills—
that the state has a moral responsibility to
exonerees—is just. However, the tremendous
procedural and political challenges presented by
private bill awards create yet another obstacle for
the exoneree.

Private bills allow states to directly compensate
particular exonerees while avoiding financial
responsibility in other wrongful convictions
cases. Who receives money and how much
depends on the size of the state’s budget
that year as well as the number of deserving
applicants. Private bills are dangerously prone
to becoming “popularity contests” based as
much on the celebrity of the exoneree and the
legislator introducing the bill as on the merits
of the case. 25 There is no consistency between

Statutes
Compensation statutes provide a uniform
amount of financial assistance, per year of
wrongful imprisonment, to anyone who can show
that he was innocent of the crime and wrongfully
convicted. In states that provide adequate
assistance, compensation statutes are the most
equitable, comprehensive and compassionate
form of compensation available. Exonerees
applying for compensation through a state
statute receive funds sooner than they would

AVAILABLE OPTIONS FOR THE EXONERATED

if they were filing a lawsuit, although they still
wait. And statutes generally treat each qualified
applicant equally, so the level of support cannot
vary depending on personality issues, race,
educational background, political connections
or other considerations. Compensation statutes
provide a clear standard for what exonerees can
expect, so they can begin to plan for their future.

report, the Senate Judiciary Committee wrote:
“Without such support, a wrongly convicted
person might never be able to establish roots that
would allow him to contribute to society. To help
repair the lives that are shattered by wrongful
convictions, the bill raises the Federal cap on
compensation, and urges states to follow suit...It is
the very least that Congress should do.” 29

Compensating people who sustain losses because
of state actions is a historic American tradition.
Perhaps the earliest compensation established
was repayment to landowners whose private
property had been seized for public use, or
“eminent domain.” What about the wrongfully
convicted? After all, a wrongfully convicted
person loses his property as well as his freedom,
job and family. But the wealthy landowners who
lobbied for loss of property laws constituted
a more powerful lobbying group than the
wrongfully convicted, who are often poor and
underrepresented. 26 The first statutes for the
wrongfully convicted passed in California and
Wisconsin in 1913. 27

The federal government standard has led to a
new wave of compensation statutes nationwide.
New laws in Texas, Vermont and North Carolina
provide better financial assistance and an array
of support services. But these good laws are the
exception, not the rule (as the next section will
show), and they benefit only the exonerated in
those particular states. For exonerees in other
parts of the country, the punishment continues
long after exoneration.

More recently, crime victims’ compensation
has passed in all 50 states. The same logic that
provides compensation for victims can be applied
to compensation for the wrongfully convicted.
The state is not legally liable in either case, but
morally obligated for the harm caused. 28
The federal government validated the need to
provide uniform compensation to the wrongfully
convicted when it passed its own statute in
1938. The original statute allocated only $5,000,
regardless of time served. In 2004, as part of the
Innocence Protection Act, Congress increased
this amount to up to $50,000 per year of wrongful
imprisonment and up to $100,000 per year of
wrongful imprisonment on death row. In its

THE INNOCENCE PROJECT

EXISTING SHORTCOMINGS
OF COMPENSATION STATUTES
In spite of public support and federal urging, 23
states still have no system for compensating the
wrongfully convicted. These 23 states include
Georgia, Pennsylvania, Michigan, Kansas and
others where innocent people have been
wrongfully convicted and are now exonerated.
These exonerees are in need of support.
Some of these states are currently considering
compensation legislation, but it’s long overdue.
Of the more than 240 people exonerated
through DNA testing nationwide, 40% have
not received any form of assistance. Of the 60%
that have received compensation, only about
half received it through a state compensation
statute. The others had to file a lawsuit,
pursue special legislation or try to make do
without any assistance. Even in states that offer
compensation, wrongfully convicted applicants
could be barred from receiving it. Often what
they do receive is inadequate. What follows is
an analysis of the limitations in many current
state compensation statutes, with case examples
showing why many statutes don’t do justice to the
wrongfully convicted.

Limited Monetary Assistance
The vast majority of exonerees who have received
compensation through a statute—81%—received
less than the federal standard of up to $50,000
per year of wrongful imprisonment. Most state’s
statutes do not meet the federal standard. In
fact, the median amount of financial assistance

awarded per year of wrongful imprisonment
is approximately $24,000. The median U.S.
household income is over $50,000 per year—
more than twice as much as this. 30
Some states set a maximum award amount.
In Wisconsin, the maximum total lump sum
award regardless of the number of years served
is $25,000; in New Hampshire it’s $20,000.
These miserly amounts are far behind the times
and do not reflect the public’s desire to fairly
compensate the wrongfully convicted.
Not all states set the cap so low, but any
maximum award will be unfair to those who
spent the most time in prison and therefore
have lost the most. Michael Evans and Paul Terry
were wrongfully convicted at the age of 17 for
the rape and murder of a young girl who lived in
their neighborhood. When they were released at
age 44, they filed for state compensation under
the Illinois statute and each received $161,005,
which only covered a fraction of their lost wages
and assets. Paul Terry settled a lawsuit with the
city and recovered additional funds. Evans never
received any additional funds or services.

No Social Services
Financial assistance can cover an exoneree’s
basic needs, but she will need more than that
to make a successful transition and become
self-sufficient. Navigating social services alone
is very difficult for someone who has been away

EXISTING SHORTCOMINGS OF COMPENSATION STATUTES

from society for years, out of touch with modern
technology, and unaccustomed to making her
own decisions. Job placement, psychological
counseling, medical care, housing assistance,
legal services and more can help exonerees
create meaningful lives for themselves.

Jimmy Ray Bromgard was exonerated in 2002 and
applied for the educational aid the following year
only to discover that the bill hadn’t been funded,
and there was no money to support his pursuit.
For exonerees who were wrongfully convicted
at a young age, exoneration is not so much a
matter of starting over but of beginning. For these
exonerees, social support services are especially
imperative. Jeffrey Deskovic was wrongfully
convicted at age 17 and had little experience in
the outside world as an adult when he was released
at age 35. “I’m this alien,” he says. “I’m the man
pretending he knows what the hell is going on
around him when, in fact, he’s clueless.” 31

Only 10 states include provisions for services within
their compensation laws. Connecticut includes
expenses for employment training, counseling
and more; Vermont offers up to 10 years in the
state health plan; North Carolina offers job skills
training and expenses for tuition. Every state
should offer support to the exonerated, at least
through their already established social service,
public works and education systems. To date, only
15 exonerees have had access to support services
through compensation statutes.

Deskovic survived the first six months after his
release on $137 a month in disability checks
and $150 in food stamps from the federal
government.32 He ate mostly Cheerios, tuna,
canned corn and pre-packaged noodle soups.33
His mother was struggling financially herself
and didn’t have the money to help him.

Some states provide services in lieu of adequate
financial assistance. Montana for example, offers
no money, only educational aid, and only to those
exonerated through post-conviction DNA testing.

Caps on State Statutes

$2,000,000,-------------------$1,500,0001----------·--------$1,000,0001-----------------$500,000

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THE INNOCENCE PROJECT

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The Innocence Project also provided financial
support, but it was little compared to what the
state could have offered. Deskovic had lost his
entire young adulthood—the prime of his life—
to be released with nothing and no support.

Assistance Is Not Immediately Available

In the meantime, the exoneree struggles to find
employment because the conviction still appears
on his criminal record. He struggles to get a
driver’s license with nothing but a prison ID card
for verification. If he doesn’t have family, he may
not have a place to live. If he doesn’t have money
or any means of transportation he’ll be stranded
wherever he stays. How will he get a job? See a
doctor? Open a bank account?

After the initial elation of freedom, the newly
exonerated person must face his many immediate
needs: a place to live, food, clothing, medical care,
some form of identification besides a prison ID
card, some means of transportation, and perhaps
other special needs depending on the individual.
The exoneration date may have arrived without
much advance notice, and the exoneree may not
be prepared. Although the process of proving
innocence can be arduous, a sudden judicial
decision is often what ultimately opens the door.

“One of the biggest challenges is that once
an innocent person comes out of prison,
they are not equipped with the tools
to reintegrate into society, and that’s
something that money alone can’t solve.”

In contrast, state compensation takes, on
average, close to three years to secure. First, the
exoneree must file a claim to the state claims
board, or equivalent entity, detailing how the
post-conviction evidence proves that he didn’t
commit the crime. Exonerees have already proven
their innocence in court, the conviction has been
overturned and the prosecution has dropped the
charges. Nevertheless, according to many state
laws, he must prove his innocence all over again.
Depending on the number of other applications
the claims board is considering (not just from
other exonerees but also from anyone claiming
an injury against the state), it could take months
or even years before his case is considered. The
exoneree may also be required to appear in court
again and may need to travel in order to do so.
Some statutes include additional procedural
hurdles, like requiring the exoneree to be
officially pardoned, and these hurdles can make
the process take that much longer.

Exoneree Ada JoAnn Taylor spoke of the
difficulties she faced upon release when she
testified in support of a compensation bill in
Nebraska. “I can’t get insurance. I have doctors
that I need to go to because I have a chiropractic
problem due to being in the prison...I can’t obtain
credit because I’ve never had credit and I’m 45
years old…I can’t get housing because I don’t
have credit to even go get a loan for a house or an
apartment or anything of that nature. I can’t get a
car for the same reasons. To be able to even think
about retirement, that’s not going to happen in
my lifetime because I don’t have the way to have
a job to save for a retirement fund.” Taylor and
other advocates convinced the Legislature to pass
a compensation law this year; however, the new
law includes a laborious claims process, which
opponents say could take exonerees up to five
years to complete.

NJ State Rep. Donald M. Payne,
The New York Times, December 2, 2007

EXISTING SHORTCOMINGS OF COMPENSATION STATUTES

Average Years from Exoneration to Compensation

4.5 , - - - - - - - - - - - - - - - - ; ; - 3 . : ; " " 9- - - - - - - - 4.01-------------=====;-------3.5 1---"-'-'---------::-.,,-----3.0
2.5
2.0
1.5
1.0
0.5

Any award
(min, <1 year;
max 14 years)

Statute
(min, < 1year;
max 11 years)

The state must offer more than simply freedom
and the potential for a check years down the road.
By that time, the exoneree has already faced the
biggest obstacles to readjustment on her own. If
not for community support, individual generosity,
and the assistance of the Innocence Project and
other advocacy organizations, some people would
have been homeless after exoneration. In spite of
these efforts, in a few rare cases, exonerees have
found themselves literally on the streets.

Excluding People Who Have
Falsely Confessed or Pled Guilty
Ada JoAnn Taylor and her co-defendants may
not qualify for statutory compensation even
if they do agree to submit to the protracted
application process in Nebraska. Taylor and four
of her five co-defendants falsely confessed
and/or pled guilty to involvement in a crime
they didn’t commit. The new Nebraska law
denies compensation to those who falsely

THE INNOCENCE PROJECT

Civil suit
(min, < 1year;
max 14 years)

Private bill
(min, < 1year;
max 4years)

confessed or pled guilty unless they have
evidence of “coercion by law enforcement,”
which would be very difficult to prove.
Other statutes include a clause stipulating that
assistance is only available to an exoneree who
“did not by his own conduct cause or bring
about his conviction.” In practice, this clause has
excluded any exoneree who falsely confessed
or pled guilty. If a prisoner has indeed brought
about his own wrongful conviction, then the
state may be justified in denying compensation;
however, the clause, as it stands, has been too
broadly interpreted. Years ago, before postconviction DNA testing, many people didn’t
believe that a false confession could happen.
Today, DNA exonerations have shown that
false confessions are far more common than
people believed. In approximately 25% of DNA
exoneration cases, innocent defendants made
incriminating statements, or delivered outright
confessions. Eighteen pled guilty.

Those who falsely confessed are often young
people, developmentally disabled, or suffer
from mental illness. But even completely
capable adults can falsely confess depending
on the length of the interrogation, physical and
emotional exhaustion, or police coercion. Some
may fear the death penalty if they don’t confess.
These individuals should not suffer additional
persecution by being denied compensation.
Professor Adele Bernhard writes, “Today,
preventing individuals from benefiting from
their own intentional misconduct, such as
inducing others to give false testimony or hiding
evidence, remains appropriate. But it no longer
seems rational to consider all false confessions as
misconduct, because multiple exonerations prove
that innocent people falsely implicate themselves,
despite gaining nothing for themselves in the
process.” 34 States that still discriminate against
people who falsely confessed should clarify the
clause so that it can’t be interpreted to exclude
those who falsely confessed or pled guilty.

and yet would have been enough to deny him
compensation for serving 24 years for a rape and
kidnapping that DNA testing proved he didn’t
commit. Florida Exoneree William Dillon is
also ineligible because of a drunk driving and
possession of drugs conviction from when he was
19 years old. In response to public outcry, Dillon
may receive compensation through a private bill.
But the extra legislation and advocacy required
for him and for Crotzer demonstrates how
inefficiently Florida has approached the issue of
compensation. No other state includes a cleanhands provision.
Prior convictions do not make the wrongful
conviction any less of an injustice. In fact, having
an existing criminal record makes someone
more vulnerable to increased suspicion from
law enforcement and more prone to wrongful
conviction. Exonerated people pay their debt
to society by serving time for any crimes they
committed, but society has not paid its debt to
them for a separate and unrelated crime that
they did not commit.

Excluding People Who Have Prior Convictions
In 2008, the Florida Legislature passed a longawaited compensation statute. Ten people have
been exonerated through DNA testing in the
state, and only three of them have received any
compensation. Ironically, the new statute can’t help
most of the remaining seven because of its “cleanhands provision,” which bars anyone with a prior
felony conviction from receiving compensation.
Exoneree Alan Crotzer, who recovered damages
through a private bill, would have been denied
statutory compensation because he stole beer
from a convenience store and was also convicted
of a drug offense while in prison. Both count
as felonies, although relatively minor ones,

EXISTING SHORTCOMINGS OF COMPENSATION STATUTES

PROVIDING COMPASSIONATE ASSISTANCE
The assistance provided through compensation
statutes can change an exoneree’s life, allowing
him to be independent for the first time in
many years. Self-sufficiency means something
different to each person, but it may include
buying a home, buying a car to drive to work or
to travel, starting a business, or going back to
school. At best, compensation statutes provide
gracious, generous assistance to those who
qualify.
Nationally, over 240 prisoners have been
proven innocent through DNA testing since
the first DNA exoneration case in 1989. In
some cases, a form of evidence other than
DNA, such as a confession from the real
perpetrator or a recantation from a key witness,
proves innocence and overturns the wrongful
conviction. The prosecutor will then either
drop the charges or choose to conduct a retrial. If the defendant is found not guilty, then
she would also be eligible for compensation.
If the defendant is pardoned, she would be
eligible as well. These conditions determine
who will receive compensation.
Even states with large prison populations
and a relatively high incidence of wrongful
convictions have shown that it’s possible
to provide compassionate assistance to the
exonerated. Texas has the most generous
compensation statute in the nation and also the
most DNA exonerations at nearly 40, far more
than any other state.

THE INNOCENCE PROJECT

“The criminal justice system is not perfect,
so at the very least, we ought to do what
we can to make amends to the people who
were wrongly convicted—a very small
number of people who pay a big, big price
for those mistakes…The compensation they
receive should not be taxed; that’s certainly
like throwing salt on a very deep wound.”
NY Senator Chuck Schumer,
The New York Times, December 2, 2007

Recommendations
The Innocence Project is intimately familiar with
the challenges exonerated people encounter
after release, and has developed a series of
recommendations for states to compensate the
wrongfully convicted:
• Provide a minimum of $50,000 per year
of wrongful imprisonment, untaxed, and
$100,000, untaxed, per year on death row,
which is in accordance with the federal
standard.
• Cover limited and appropriate attorney’s fees
associated with filing for compensation.
Currently, only five states meet this standard:
Texas, Alabama, Florida, Mississippi and North
Carolina. The amount is intended to cover costs

associated with lost liberty, lost wages, criminal
defense, medical expenses; and losses, such as
physical injuries and illness or psychological
illness, suffered as a result of the time in prison.
The amount should not be subject to taxation.

State Statute Payouts Per Year

• 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.
The county Department of Social Services or
other appropriate entity should be tasked with
creating a “release plan” based on the exoneree’s
individual needs and work with state agencies
like the Department of Health to ensure that
these services will be provided free of charge.
Services that aren’t immediately covered by the
state should be reimbursed to the exoneree
as part of the compensation package. A state
needn’t look far to meet these immediate needs,
many of its own existing programs and services
can fill this role. For example, transportation
vouchers for public transportation could be
issued as part of the release package. Emergency
slots in public housing could be made available.
If the exoneree is interested in pursuing higher
education, the state university system should
offer free tuition. Computer classes offered to
state employees should be made available to
exonerees as well.
• Issue an official acknowledgment of the
wrongful conviction.
Conceding that no system is perfect, the state
government’s public recognition of the harm
inflicted upon the wrongfully convicted person
helps to foster the healing process, while
assuring the public that the state—regardless of
fault—is willing to own up to its wrongs.

42%

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Public support for compensation laws helps
to ensure their passage. Media surrounding
exonerations has brought the issue to the public’s
awareness, which has, in turn, motivated states
to adopt new legislation or improve existing
legislation. Some of the 27 states that currently
have a compensation statute adopted it in the
2000s, after post-conviction DNA testing helped
expose the frequency of wrongful convictions.
This new wave of state compensation systems
includes Vermont, Alabama, Connecticut and
North Carolina, all of which provide more
generous and comprehensive support than
their predecessors. These states are meeting the
standard set by the federal government, and
are also offering support services in addition to
financial assistance. The following states have
become models for providing compassionate
assistance to the wrongfully convicted.

PROVIDING COMPASSIONATE ASSISTANCE

Texas
A steady tide of Texans have been proven
innocent through DNA testing and exonerated
in the last 15 years. To the state’s credit, they have
responded by offering an increasingly beneficial
compensation package. In 2007, Texas raised the
amount that exonerated people could receive
under statutory compensation from $25,000 per
year of wrongful imprisonment to $50,000 per
year, in line with the federal standard. Two years
later, the Legislature raised it again to $80,000
plus $25,000 per year spent on parole or as a
registered sex offender. No other state has this
provision, although wrongfully convicted people
are often paroled before exoneration. Social
services provided by Texas are also the best in the
nation, including job training, tuition credits and
access to medical and dental treatment. The bill
was passed through the Tim Cole Act, in honor of
an innocent man who died in prison and was later
posthumously exonerated.

“We have taken a significant step forward to
help wrongfully convicted Texans rebuild
their shattered lives.”
TX State Senator Rodney Ellis,
Press Release, April 19, 2007

Vermont
In 2007, Vermont became the 23rd state to adopt
a compensation statute, and the statute is one of
the most generous in the nation. An exonerated
person can file a claim for compensation up
to three years after the exoneration. The court
can award between $30,000 and $60,000 per
year of wrongful imprisonment. The exoneree
is also eligible for up to 10 years of state health
care, economic damages (which may include

THE INNOCENCE PROJECT

lost wages), reimbursement for attorney fees, as
well as reimbursement for support services and
mental and physical health care costs paid for by
the exoneree after exoneration and before the
compensation funding was available. Vermont is
also one of the few states that explicitly exempt
compensation money from state income taxes.
Connecticut
The Connecticut statute is one of the few that
doesn’t specify a set amount of compensation per
year of wrongful conviction. However, there is also
no limit on the amount that could be awarded.
Passed in 2008, the law provides repayment
for loss of liberty and enjoyment of life; loss of
earnings; loss of earning capacity; loss of familial
relationships; loss of reputation; physical pain
and suffering; mental pain and suffering; and
attorney’s fees and other expenses arising from
the wrongful conviction. In addition to the
financial compensation, the exoneree can also
receive employment training and counseling,
tuition waivers, and other transitional services.

Success Stories
Compensation has enabled exonerees to pay off
debts, get established in the free world and even
achieve their goals. Here are a few of their stories.
Rickie Johnson
Sentence served: 25 years
State: Louisiana
With the help of his local District Attorney, Rickie
Johnson received $150,000 in compensation
money soon after he was exonerated. He used it
to pursue his dream of opening a leatherworks
business—RJ Leather—which had its grand
opening on January 14, 2009, a year to the day
that Johnson was released from prison after
25 years of wrongful imprisonment. Although

Annual Payments Per Year of Wrongful Imprisonment

$80,000 r - - - - - - - - - - - - - - - - - - - $70,0001------------------$60,0001------------------$50,0001-------------$40,000 I----------~~
$30,000 1 - - - - - - $20,000 I-------==_
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* Vermont awards between $30,000 and $60,000 per year.
Johnson received the maximum that Louisiana
provides, it was still less than what many exonerees
serving that amount of time have received.
Undaunted, Johnson got to work.
He spent the money on machines, leather and
other supplies that he needed to open the store.
He also purchased a pick-up truck for the business
and painted “RJ Leather” on the side. The store in
Leesville, Louisiana, where Johnson is a member
of the Chamber of Commerce, sells custom-made
belts, shoes, sandals, wallets, purses and more.
RJ Leather also gives him an opportunity to
spend time with family members who help
him manage the store. “This is a family-owned
business,” he says. “The next thing I want to do is
get a bigger store. Teach my family how to do the
business and build it up. Look at them run it and
then go retire.”

Larry Fuller
Sentence served: 19.5 years
State: Texas
Larry Fuller’s childhood home had fallen into
disrepair during the years that he was gone.
His elderly father couldn’t keep it up, and
his mother had passed away while he was in
prison. So, when Fuller received $1 million in
compensation from the state of Texas a year
after his exoneration in 2007, he knew exactly
what to do with the money.
“Roofing, plumbing, remodeling the kitchen,
fixing the garage…We’ve shaped it up from
top to bottom.” All that’s left to do is paint the
outside of the house and get the shudders back
up. Fuller, who has a background in fine arts,
has chosen the color—eucalyptus green.

PROVIDING COMPASSIONATE ASSISTANCE

Shortly before his wrongful conviction, Fuller
completed a fine arts degree at The Art
Institute of Dallas. His artistic talents came in
handy in prison; he was given a job at the sign
shop, and he taught himself calligraphy. Now
that he’s out, he’s looking forward to refining
his talent for drawing and painting in the
Impressionist style. He’s recently purchased an
easel, a sketchbook and other art supplies to get
started again.
But first, he’s got an important job to finish.
“Giving tribute to the house where I grew up,” he
says. Once the house is complete, Fuller will find
his own place, where he can live close enough to
his father to continue taking care of him.
Roy Brown
Sentence served: 15 years
State: New York
Roy Brown didn’t think he would ever live to
see the day that he was compensated. The joy
of his exoneration in 2007 was tempered by the
knowledge that he was dying of liver disease and
had only a few months left to live. But Brown
beat the odds; he received a liver transplant soon
after his release and has made a remarkable
recovery. His sister Billie Jo Kuczynski calls him
“our walking miracle.”
Two years later, Brown received $2.6 million
from the state of New York. He has big plans
for the money. He’s embarked on a renovation
project of historic homes in Cayuga County, New
York, and plans to become a real estate manager.
He recently married his childhood sweetheart
and first love from when he was 14 years old.
For the honeymoon, he purchased an RV for
traveling around the country.
“It’s some sort of justice, you know,” Brown says.

THE INNOCENCE PROJECT

“It doesn’t correct things. It doesn’t make things
right. I can still feel the weight of those chains.
They’re not as heavy anymore.” 35

Fair Compensation for All
The Innocence Project works with state
legislators nationwide to create new
compensation legislation and improve existing
legislation. Criminal justice professionals have
been calling for similar reforms for over 70
years. Exonerees, who know firsthand what it
feels like to be released from prison with next
to nothing, have also become advocates for the
cause, and are determined to help others avoid
the struggles they faced upon release. Exonerees
and their families cannot be expected to bear
the loss alone. After so many years of the state
controlling their lives, of losing homes, jobs
opportunities, loved ones and precious freedom,
they are owed the fair compensation that only
state statutes can provide.

ENDNOTES
1. Only five states explicitly provide $50,000 per year of wrongful imprisonment. Four additional
states plus the District of Columbia do not specify an amount of compensation and in some
cases, effectively provide $50,000 per year of wrongful imprisonment. Vermont provides between
$30,000 and $60,000.
2. Lola Vollen and Dave Eggers, eds., Surviving Justice: America’s Wrongfully Convicted and Exonerated
(San Francisco: McSweeney’s Books, 2005), 152.
3. Ibid., 154.
4. Ibid., 159.
5. Abby Aguirre et al., “Exonerated, Freed, and What Happened Then,” The New York Times,
November 25, 2007.
6. Craig Haney, “The Psychological Impact of Incarcerations: Implications for Post-Prison
Adjustment,” 2001, http://aspe.hhs.gov/HSP/prison2home02/Haney.htm.
7. Ibid.
8. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed., text
rev. (Washington, DC: American Psychiatric Association, 2000), 463.
9. Michael Hall, “The Exonerated,” Texas Monthly, November 2008, 155.
10. Janet Roberts and Elizabeth Stanton, “A Long Road Back After Exoneration, and Justice is Slow to
Make Amends,” The New York Times, November 25, 2007.
11. Joan Petersilia, “When Prisoners Return to Communities: Political, Economic and Social
Consequences,” Federal Probation 65 (2001): 3-9.
12. Hall, “The Exonerated,” 151.
13. Jeanne Contardo and Michelle Tolbert, “Prison Postsecondary Education: Bridging Learning from
Incarceration to the Community,” http://www.urban.org/projects/reentry-roundtable/upload/
Contardo.pdf.
14. Shawn Armbrust, “When Money Isn’t Enough: The Case for Holistic Compensation of the
Wrongfully Convicted,” American Criminal Law Review (2004): 173.
15. Roberts and Stanton, “Long Road Back.”
16. Armbrust, “When Money Isn’t Enough,” 175.

ENDNOTES

17. “A Social Work Success: Securing Long-Term Support for an Ailing Client,” The Innocence Project
2007 Annual Report, 14-15.
18. Vollen and Eggers, eds., Surviving Justice, 157.
19. U.S. Department of Commerce, Bureau of Economic Analysis, Personal Income and Its
Disposition data: http://www.bea.gov.
20. Ibid.
21. Hall, “The Exonerated,” 162.
22. Vollen and Eggers, eds., Surviving Justice, 161.
23. Edwin M. Borchard, Convicting the Innocent: Errors of Criminal Justice (New Haven: Yale University
Press, 1932), 375
24. Mary Massaron Ross and Edwin P. Voss, Jr., eds., Sword and Shield: a Practical Approach to Section 1983
Litigation, 3rd ed. (Chicago: American Bar Association, 2006), 44.
25. Adele Bernhard, “Justice Still Fails: A Review of Recent Efforts to Compensate Individuals Who
Have Been Unjustly Convicted and Later Exonerated,” Drake Law Review (2004): 708.
26. Borchard, Convicting the Innocent, 390.
27. Ibid.
28. Adele Bernhard, “When Justice Fails: Indemnification for Unjust Conviction,” University of
Chicago Law School Roundtable (1999): 97.
29. U.S. Senate, The Innocence Protection Act of 2002, 107th Cong., 2d sess., S.486, March 7, 2001,
http://thomas.loc.gov/cgi-bin/cpquery/T?&report=sr315&dbname=107&.
30. U.S. Census Bureau, “Income, Poverty, and Health Insurance Coverage in the United States:
2007,” http://www.census.gov/prod/2008pubs/p60-235.pdf
31. Fernanda Santos, “Vindicated by DNA, but a Lost Man on the Outside,” The New York Times,
November 25, 2007.
32. Ibid.
33. Ibid.
34. Bernhard, “Justice Still Fails,” 718.
35. Roy Brown quoted in John Stith, “DNA Tosses Auburn Man’s 1995 Murder Conviction,” The PostStandard, June 20, 2008.

THE INNOCENCE PROJECT

APPENDIX A
Compensation Statues by State
STATES

STATUTE BASICS

Alabama

Minimum of $50,000 for each
year of wrongful incarceration.

Alaska

No statute.

Arizona

No statute.

Arkansas

No statute.

California

Maximum of $100 per day of
wrongful incarceration.

Colorado

No statute.

Connecticut

Compensation is based on factors
such as claims for loss of liberty
and enjoyment of life; loss of
earnings; loss of earning capacity;
loss of familial relationships;
loss of reputation; physical pain
and suffering; mental pain and
suffering; and attorney’s fees and
other expenses arising from or
related to such person’s arrest,
prosecution, conviction and
incarceration.

Delaware

No statute.

District Of
Columbia

The court determines what
amount fairly and reasonably
compensates the exoneree.

SUPPORT SERVICES

RESTRICTIONS
The wrongfully convicted person
can only receive compensation if
the Legislature appropriates the
funds. A new felony conviction
will end the claimant’s right to
compensation.

The wrongfully convicted person
must show he did not “contribute
to the bringing about of his
arrest or conviction for the crime
with which he was charged.”
This provision may prevent
people who falsely confessed
or pled guilty from receiving
compensation.*
Employment training and
counseling, tuition and fees at
any constituent unit of the state
system of higher education and
any other services needed to
facilitate reintegration into the
community.

The wrongfully convicted
person must show that he
“did not contribute to his own
prosecution.”* The wrongfully
convicted person must not have
pled guilty unless it was an Alford
plea.

APPENDIX A

STATES

STATUTE BASICS

SUPPORT SERVICES

RESTRICTIONS

Florida

$50,000 annually with a
maximum of $2 million. The
wrongfully convicted person
cannot be compensated for years
served on another prior felony
conviction.

120 hours of tuition at a
career center, community
college or state university and
reimbursement for any fines or
costs imposed at the time of his
sentence.

The wrongfully convicted person
must not have any prior felony
convictions. Maximum of $2
million regardless of time served.

Georgia

No statute.

Hawaii

No statute.

Idaho

No statute.

Illinois

$85,350 for those who served up
to five years; $170,000 for those
who served between five and 14
years; $199,150 for those who
served more than 14 years. The
law also reimburses attorney’s
fees up to 25 percent of the
compensation award.

Job search and placement
services.

Compensation cannot exceed
$85,350 for up to five years
of wrongful imprisonment,
$170,000 for up to 14 years and
$199,150 for more than 14 years.

Indiana

No statute.

Iowa

$50 per day of wrongful
incarceration plus lost wages up
to $25,000 a year, plus attorney’s
fees.

Kansas

No statute.

Kentucky

No statute.

Louisiana

$15,000 per year of wrongful
incarceration, with a maximum
of $150,000.

Maine

Maximum of $300,000.

Maryland

The Board of Public Works
determines compensation
packages for pardoned persons
who were wrongfully convicted,
and may grant a reasonable
amount for any financial or other
appropriate counseling for the
individual.

Massachusetts

A maximum of $500,000.

Michigan

No statute.

Minnesota

No statute.

THE INNOCENCE PROJECT

The wrongfully convicted person
must not have pled guilty.

One year of job or skill training,
three years of medical and
counseling services, tuition
expenses at a community college
or unit of the state university
system.

Maximum of $150,000 regardless
of time served.

Maximum of $300,000 regardless
of time served.

Physical and emotional services,
educational services at any state
or community college.

Any person is eligible so long as
he did not plead guilty (unless
such plea was withdrawn,
vacated, or nullified). Maximum
of $500,000 regardless of time
served.

STATES

STATUTE BASICS

SUPPORT SERVICES

Mississippi

$50,000 for each year of wrongful
incarceration with a maximum of
$500,000.

Maximum of $500,000 regardless
of time served. The wrongfully
convicted person must show that
he did not suborn perjury or
fabricate evidence during any of
the proceedings related to the
crime with which he was charged.
This provision may prevent
people who falsely confessed
or pled guilty from receiving
compensation.*

Missouri

$50 per day of post-conviction
confinement.

Only wrongfully convicted
persons exonerated through
DNA testing are eligible.

Montana

No financial compensation.

Nebraska

$25,000 per year with a maximum
of $500,000.

Nevada

No statute.

New
Hampshire

Maximum of $20,000 for
the entirety of the wrongful
incarceration.

Maximum of $20,000 regardless
of time served.

New Jersey

Twice the amount of the
exoneree’s income in the year
prior to incarceration or $20,000
per year of incarceration,
whichever is greater.

The wrongfully convicted person
must show “he did not by his own
conduct cause or bring about
his conviction.” This provision
may prevent people who falsely
confessed or pled guilty from
receiving compensation.*

New Mexico

No statute.

New York

The Court of Claims determines
what amount will fairly and
reasonably compensate the
wrongfully convicted person. His
request will be expedited by the
court of claims.

North Carolina

$50,000 for each year of wrongful
incarceration with a maximum of
$750,000.

North Dakota

No statute.

Educational aid.

RESTRICTIONS

Only wrongfully convicted
persons exonerated through
DNA testing are eligible.
The wrongfully convicted
person must show that he did
not “commit or suborn perjury,
fabricate evidence, or otherwise
make a false statement.”* If the
wrongfully convicted person
falsely confessed or pled guilty,
he must show that the confession
was coerced. Maximum of
$500,000 regardless of time
served.

Maximum of $750,000 regardless
of time served.

APPENDIX A

STATES

STATUTE BASICS

Ohio

$40,330 per year (or amount
determined by state auditor) in
addition to lost wages, costs, and
attorney’s fees.

The wrongfully convicted person
must not have pled guilty.

Oklahoma

$175,000 for the entirety of the
wrongful incarceration.

The wrongfully convicted
person must not have pled
guilty and must show that he
was imprisoned solely as a result
of the wrongful conviction.
Maximum of $175,000 regardless
of time served.

Oregon

No statute.

Pennsylvania

No statute.

Rhode Island

No statute.

South Carolina

No statute.

South Dakota

No statute.

Tennessee

A maximum of $1,000,000
for the entirety of a wrongful
incarceration. The board of
claims, in determining the
amount of compensation, shall
consider the person’s physical
and mental suffering and loss of
earnings.

Texas

$80,000 per year of wrongful
incarceration, as well as $25,000
per year spent on parole or as a
registered sex offender, plus an
annuity.

THE INNOCENCE PROJECT

SUPPORT SERVICES

RESTRICTIONS

Maximum of $1 million
regardless of time served.

Compensation for child support
payments, tuition for up to 120
hours at a career center or public
institution of higher learning,
and reentry and reintegration
services, including life skills,
job and vocational training
for as long as those services
are beneficial. In addition,
the state provides necessary
documentation (i.e. a state ID
card) and financial assistance
to cover living expenses. Help is
also provided to access medical
and dental services, including
assistance in completing
documents required for
application to federal entitlement
programs, assistance in obtaining
mental health treatment and
related support services through
the public mental health
system for as long as necessary.
Assistance also includes obtaining
appropriate support services, as
identified by the exoneree and
the assigned case manager, to
assist in making the transition
from incarceration into the
community.

STATES

STATUTE BASICS

SUPPORT SERVICES

RESTRICTIONS

Utah

A wrongfully convicted person
is eligible to receive for each
year or portion of a year he was
incarcerated, up to a maximum
of 15 years, the monetary
equivalent of the average annual
nonagricultural payroll wage in
Utah.

Vermont

Between $30,000 and $60,000 per
year the person was incarcerated.

The exoneree is also eligible
for up to 10 years of state
health care, economic damages
(which may include lost wages),
reimbursement for attorney fees,
as well as reasonable reintegrative
services and mental and physical
health care costs incurred by
the claimant for the time period
between his or her release and
the date of award.

The wrongfully convicted person
must show that he did not suborn
perjury or fabricate evidence
during any of the proceedings
related to the crime with which
he was charged. This provision
may prevent people who falsely
confessed or pled guilty from
receiving compensation.*

Virginia

90% of the Virginia per capita
personal income for up to 20
years.

Tuition worth $10,000 in the
Virginia Community College
system. Exonerees also receive
a transition assistance grant of
$15,000, which is later deducted
from the final award.

The wrongfully convicted person
must not have pled guilty--unless
he was charged with a capital
offense. A new felony conviction
will end the claimant’s right to
compensation.

Washington

No statute.

West Virginia

No maximum amount is
specified.

Wisconsin

$5,000 for each year in prison,
with a maximum of $25,000 plus
attorney’s fees.

The wrongfully convicted person
must show that he did not by his
act or failure to act contribute to
bring about the conviction and
imprisonment for which he seeks
compensation. This provision
may prevent people who falsely
confessed or pled guilty from
receiving compensation.*

Wyoming

No statute.

Federal

Up to $50,000 per year of
wrongful inprisonment and
$100,000 per year on death row.

A wrongfully convicted person
who served more than 15 years
will not receive compensation
for those additional years of
wrongful imprisonment.

*See pages 18-19 for more information about this provision.

APPENDIX A

APPENDIX B
Model Legislation, 2010 State Legislative Sessions
An Act Concerning Claims for Wrongful Conviction and Imprisonment

THE INNOCENCE PROJECT

Updated: October, 2009

INNOCENCE PROJECT
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Benjamin N. Cardozo School of Law, Yeshiva University

MODEL LEGISLATION, 2010 STATE LEGISLATIVE SESSIONS
AN ACT CONCERNING CLAIMS FOR WRONGFUL CONVICTION AND
IMPRISONMENT

SECTION 1. LEGISLATIVE INTENT
The legislature finds that innocent persons who have been wrongly convicted of crimes and
subsequently imprisoned have been uniquely victimized, have distinct problems re-entering
society, have difficulty achieving legal redress due to a variety of substantive and technical
obstacles in the law, and that such persons should have an available avenue of redress over and
above the existing tort remedies to seek compensation for damages. In light of the particular and
substantial horror of being imprisoned for a crime one did not commit, the legislature intends by
enactment of the provisions of this Act that those persons who can demonstrate that they were
wrongfully convicted receive immediate services upon release, and those who can meet the
higher standard of proving their actual innocence be able to receive monetary compensation.

SECTION 2. STATEMENT OF CLAIM FOR COMPENSATION
A. In order to present an actionable claim for wrongful conviction and imprisonment, claimant
must establish by documentary evidence that:
1. He has been convicted of one or more crimes and subsequently sentenced to a term of
imprisonment and has served all or any part of the sentence;
2. On grounds not inconsistent with innocence:
a. He was pardoned for the crime or crimes for which he was sentenced and
which are the grounds for the complaint;

Barry C. Scheck, Esq. and Peter J. Neufeld, Esq., Directors Maddy deLone, Esq., Executive Director
100 Fifth Avenue, 3rd Floor • New York, NY 10011 • Tel: 212/364-5340 • Fax: 212/364-5341

Innocence Project, Inc.
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b. The statute, or application thereof, on which the accusatory instrument was
based, violated the Constitution of the United States or the [State];
c. The judgment of conviction was vacated; or
d. The judgment of conviction was reversed;
3. If there was a vacatur or reversal, either the accusatory instrument was dismissed; or if
a new trial was held, the defendant was found not guilty; and
4. His claim is not time-barred by the provisions of Section 6 of this Act.
B. The claim shall be verified by the claimant.
C. If the court finds after reading the claim that the claimant has not alleged sufficient facts to
succeed at trial, it shall dismiss the claim, either on its own motion or on the state’s motion.

SECTION 3: PRESENTATION OF CLAIM
All claims of wrongful conviction and imprisonment shall be presented to and heard by the
state’s civil court or the state’s other appropriate administrative structure that handles similar
compensation claims.

SECTION 4: JUDGMENT AND AWARD
A. In order to obtain a judgment in his favor, claimant must prove by a preponderance of the
evidence that:
1. He was convicted of one or more crimes and subsequently sentenced to a term of
imprisonment, and has served all or any part of the sentence; and
a. He has been pardoned for the crime or crimes for which he was sentenced and

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which are the grounds for the complaint; or
b. His judgment of conviction was reversed or vacated, and:
i. The accusatory instrument was dismissed; or
ii. If a new trial was ordered, either he was found not guilty at the new
trial or he was not retried and the accusatory instrument was dismissed,
provided that:
a. The judgment of conviction was reversed or vacated, or the
accusatory instrument was dismissed, on grounds not inconsistent
with innocence; or
b. The statute, or application thereof, on which the accusatory
instrument was based violated the Constitution of the United States
or the [State]; and
2. He did not commit any of the crimes charged in the accusatory instrument, or the acts
or omissions charged in the accusatory instrument did not constitute a crime; and
3. He did not commit or suborn perjury, or fabricate evidence to cause or bring about his
conviction. However, neither a confession or admission later found to be false, nor a
guilty plea to a crime the claimant did not commit constitutes bringing about his own
conviction under this Act.
B. If the court finds that the claimant was wrongfully convicted and incarcerated pursuant to
Section 4, subsection A of this Act, the court shall award:
1. Damages for the physical injury of wrongful conviction and incarceration which shall
be:

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a. Not less than $50,000 for each year of incarceration, with an additional
$50,000 for each year served on death row. This amount shall reflect:
i. Inflation from the date of enactment as adjusted by the state auditor, and
partial years the claimant served;
ii. Consideration of:
a. Economic damages including but not limited to:
i. Lost wages;
ii. Costs associated with his criminal defense and efforts to
prove innocence; and
iii. Medical and dental expenses incurred or expected to be
incurred after release;
b. Non-economic damages for:
i. Personal physical injuries or physical sickness; and
ii. Any non-physical injuries or sickness arising out of
same, incurred during or as a result of incarceration; and
b. Not less than $25,000 for each year served either on parole, probation or as a
registered sex offender, to be pro-rated for partial years served;
2. Physical and mental health care for the life of the claimant through the state
employees’ health care system, to be offset by any amount provided through claimant’s
employers during that time period;
3. Reimbursement for any tuition and fees paid for the education of the claimant and any
biological children that were conceived prior to his incarceration for the wrongful

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conviction at any community college or other unit of the [State] public university system,
including any necessary assistance to meet the criteria required therefor, or a mutually
agreed upon vocational program; and employment skills development training;
4. Compensation for child support payments owed by the claimant that became due, and
interest on child support arrearages that accrued, during the time served in prison but
were not paid;
5. Compensation for any reasonable costs incurred by claimant for immediate services
secured upon exoneration and release, including housing, transportation and subsistence,
re-integrative services and mental and physical health care costs incurred by claimant for
the time period between his release from wrongful incarceration and the date of his
award; and
6. Reasonable attorneys’ fees for bringing a claim under this Act calculated at ten
percent of the damage award plus expenses;
a. These fees, exclusive of expenses, shall not exceed $75,000, as adjusted by the
state auditor to account for inflation from the date of enactment; and
b. These fees shall not be deducted from the compensation due claimant; nor is
counsel entitled to receive additional fees from the client.
C. The damage award shall not be subject to:
1. Any cap applicable to private parties in civil lawsuits;
2. Any taxes, except for those portions of the judgment awarded as attorneys fees for
bringing a claim under this Act; or
3. Treatment as gross income to a claimant under the provisions of [the State’s taxation

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code].
D. The acceptance by a claimant of any such award, compromise or settlement shall:
1. Be reduced to writing; and
2. Except when procured by fraud, be final and conclusive on the claimant.
E. Any future damages awarded to the claimant resulting from an action by the claimant against
any unit of government within [State] by reason of the same subject shall be offset by the
damage award received under this Act.
F. The damage award shall not be offset by any expenses incurred by the state or any political
subdivision of the state, including, but not limited to:
1. Expenses incurred:
a. To secure the claimant’s custody; or
b. To feed, clothe or provide medical services for said claimant; or
2. The value of any services or reduction in fees for service, or the value thereof to be
provided to the claimant that may be awarded to the claimant pursuant to this Act.
G. If the court finds that the claimant was subjected to a lien pursuant to defense services
rendered by the State to defend the client in connection with the criminal case that resulted in his
wrongful conviction, the court shall extinguish said lien.

Drafters’ Note: Because a criminal record can prevent a wrongfully convicted person from
rebuilding a successful life, every state should include an expungement and/or sealing provision.
Since state laws vary greatly and there are important concerns to be addressed under each state
law, please contact the Innocence Project to discuss how to most appropriately craft this

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provision in your state.

SECTION 5. NOTICE
A. A court granting judicial relief consistent with the criteria set forth in clause (2) of subsection
A of Section 2 of this Act on or after the effective date of this Act shall provide a copy of this to
the individual granted such relief at the time the criteria of said clause (2) of subsection A of
Section 2 of this Act are satisfied.
B. The individual shall be required to acknowledge his receipt of a copy of this Act in writing on
a form established by the Chief Justice for administration and management of the Trial Court.
C. The court shall enter said acknowledgement on the docket and the acknowledgement shall be
admissible in any proceeding filed by a claimant under this Act.
D. The parole board, upon the issuance of a full pardon under section XX of Chapter XX on or
after the effective date of this Act, shall provide a copy of this Act at the time the pardon is
issued to the individual pardoned. The individual shall be required to acknowledge his receipt of
a copy of this Act in writing on a form established by the parole board, which shall be retained
on file by the parole board as part of its official records and shall be admissible in any
proceeding filed by a claimant under this Act.
E. In the event a claimant granted judicial relief or a full pardon on or after the effective date of
this Act shows he did not properly receive a copy of the information required by this section, he
shall receive a one-year extension on the three-year time limit provided in Section 6 of this Act.
F. The Chief Justice for administration and management of the Trial Court shall make
reasonable attempts to notify all persons pardoned or granted judicial relief consistent with the

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criteria set forth in subclauses (b), (c), or (d) of clause (2) of subsection A of Section 2 of this
Act before enactment of said Act of their rights under this Act.

SECTION 6. TIME LIMITATIONS
A. An action for compensation brought by a wrongfully convicted person under the provisions
of this Act shall be commenced within three years after either the grant of a pardon or the grant
of judicial relief and satisfaction of other conditions described in subsection A of Section 2 of
this Act; provided, however, that any action by the state challenging or appealing the grant of
said judicial relief shall toll said three-year period. Persons convicted, incarcerated and released
from custody prior to the effective date of this Act shall commence an action under this Act
within three years of said effective date.
B. Notwithstanding any other provision of law, failure to file any applicable Notice of Claim
shall not bar filing of a claim under this Act.

SECTION 7. RIGHT OF APPEAL
Any party is entitled to the rights of appeal afforded parties in a civil action following a decision
on such motions as set forth in section XX of said Chapter XXX of the [State] code.

SECTION 8. ELIGIBILITY FOR IMMEDIATE SERVICES
A. Any person convicted and subsequently imprisoned for one or more crimes for which either
he is pardoned on grounds not inconsistent with innocence, or the conviction(s) are reversed or
vacated on the basis of newly discovered evidence, and either the charges are dismissed or he is

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subsequently re-tried and acquitted, shall receive up to three years of immediate services needed
upon release and for successful return to society, including but not limited to: housing, which
may include authorizing the prioritization of the wrongfully convicted as a category in [State’s]
Section 8 Housing Voucher Program; secondary or higher education; vocational training;
transportation; subsistence monetary assistance; re-integrative services, and mental, physical and
dental health care. The need for these services shall be determined through a review by the
appropriate staff at the Department of Social Services [or [State’s] relevant agency], and
provided by the appropriate state entities, or contractors thereof.
B. Where a conviction is vacated on legal grounds, a judge may order that services similar to
those in Section 8(A) of this Act be provided.

THE INNOCENCE PROJECT
The Innocence Project was founded in 1992 by Barry C. Scheck and Peter J. Neufeld at the
Benjamin N. Cardozo School of Law at Yeshiva University to assist prisoners who could be proven
innocent through DNA testing. To date, over 240 people in the United States have been exonerated
by DNA testing, including 17 who served time on death row. These people served an average of
13 years in prison before exoneration and release. The Innocence Project’s full-time staff attorneys
and Cardozo clinic students provide direct representation or critical assistance in most of these cases.
The Innocence Project’s groundbreaking use of DNA technology to free innocent people has
provided irrefutable proof that wrongful convictions are not isolated or rare events but instead arise
from systemic defects. Now an independent nonprofit organization closely affiliated with Cardozo
School of Law at Yeshiva University, the Innocence Project’s mission is nothing less than to free the
staggering numbers of innocent people who remain incarcerated and to bring substantive reform
to the system responsible for their unjust imprisonment.

INNOCENCE

PROJECT

1111 I I II I

INMOUNU PlOHCT, INC.
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