Dear Straight Dope:
Howdy. Recent events (thankfully not in my own life) made me wonder: when an individual who has been in prison after being found guilty of a crime is later found to be innocent and is released, is he automatically entitled to monetary restitution from the state? Or is it a matter of "you had a trial and lost"? Also, I was once told that one cannot sue the government unless it agrees to be sued. Is this true?
Due to current technical limitations, they can’t give innocent convicts their time back, so that pretty much leaves money. Some get compensated; many don’t. Randall Adams, for one, didn’t. It depends on the jurisdiction and on the circumstances of the case.
False convictions happen a lot more frequently than we’d like to think. Recent exonerations based on DNA testing have made the news, but in many cases DNA evidence wasn’t kept around long enough to be analyzed by the time the technology was developed and gained acceptance by courts. Today most states still don’t require such evidence to be preserved, and some states don’t even grant convicts access to it. Often there never was any DNA evidence in the first place.
Of course, not every exoneration results from DNA evidence. Some convicts are exonerated after the real criminal confesses or, as in Limone v. United States [PDF], after official misconduct comes to light. In Limone four men were convicted of a murder based on the perjured testimony of a known mobster and murderer. The mobster was assisted in the frame-up by the FBI, which protected him, lied to state officials, and concealed exculpatory evidence from defense attorneys. Three of the convicts were sentenced to die but were ultimately spared by the Supreme Court; two died in prison. The two others served over 30 years before being released.
How does one get wrongly convicted? Well, nobody claims our criminal justice system is perfect. A 2005 study by Samuel Gross and his colleagues counted 340 exonerations between 1989 and 2003 and notes that these exonerees "spent more than 3400 years in prison for crimes for which they should never have been convicted – an average of more than ten years each." There are lots of reasons for wrongful convictions, but the Innocence Project, the famed clinic at New York’s Cardozo Law School that specializes in exonerations via DNA evidence, names seven major causes:
1. Eyewitness identifications. "While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated."
2. Unreliable scientific evidence. Junk science is junk science, no matter which side uses it.
3. False confessions. There are lots of reasons suspects confess when they didn’t do it. They include duress or torture by investigators, fear of violence, intoxication or mental impairment, and promises of lighter treatment.
4. Misconduct by forensic scientists. Scary to think about, but it happens.
5. Government misconduct. Limone is a particularly good example.
6. Perjury by informants and snitches. The Innocence Project says 15 percent of their exonerees were convicted based on testimony by informants or jailhouse snitches who stood to benefit from their cooperation. But don’t get excited – witnesses enjoy immunity from suit just about everywhere, even if they lie.
7. Bad lawyering. The Innocence Project cites examples of lawyers who slept in the courtroom during trial, got disbarred shortly after finishing a death penalty case, failed to investigate alibis, failed to call or consult experts on forensic issues, or simply failed to show up for hearings.
And, of course, the innocent don’t all get exonerated. Common sense suggests that exculpatory evidence won’t be uncovered to free every wrongly convicted prisoner. Professor Gross runs some numbers:
If we managed to identify and release 75% of innocent death-row inmates before they were put to death, then we also executed twenty-five innocent defendants from 1989 through 2003. If, somehow, we have caught 90% of false capital convictions . . . we only executed eight innocent defendants in that fifteen-year period.
So how do exonerees get compensated? The sad news is most probably don’t. According to the Innocence Project’s Web site, 22 states currently have statutes under which innocent convicts are ensured some restitution: Alabama, California, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Missouri, Montana, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Tennessee, Texas, Vermont, Virginia, West Virginia, and Wisconsin, plus the District of Columbia. In other words, less than half the states offer any form of guaranteed redress for the wrongly convicted. U.S. jurist Edwin Borchard was arguing for laws like this back in 1913 – he believed that principles of eminent domain required states to provide such compensation, and pointed out that most European countries already did so.
Some states, like Connecticut, enact case-specific statutes when they want to compensate an exoneree. Florida did this for Wilton Dedge in 2005 [PDF]. Dedge served 22 years of a life sentence for a rape all now concede he didn’t commit. To get relief, however, he first had to get himself exonerated. To do that, he had to convince judges to make new law and fight a justice system seemingly sworn to keep him in jail. After he won access to DNA testing, which then proved that pubic hair from the crime scene wasn’t his, the state argued that Dedge had obtained his DNA evidence too early – i.e., since he’d done so before Florida subsequently passed a law to govern the granting of such access, he couldn’t use the evidence to get back into court. Prosecutors continued to oppose Dedge’s motions on sundry procedural grounds for three years, and, according to the Innocence Project site, went so far as to admit in court that they would oppose Dedge’s release "even if they knew that he was absolutely innocent." Nice group of people.
And it’s not as if Florida just handed him the money once he was exonerated. Initially Dedge had to sue for restitution, and he lost. It was only after his case was finally dismissed that the legislature passed the special bill to compensate him.
Dedge’s experience isn’t unique; some states seem oddly reluctant to give exonerees anything but the finger. In the documentary After Innocence (2005), police detective Scott Hornoff, who served six and a half years of a life sentence for murder in Rhode Island before the actual killer confessed, recalls: "There was no apology from the judge, prosecutor, or attorney general. Actually, I think they were upset at me for being innocent." According to the Innocence Project, "Many exonerees are released from their cells without fanfare, apologies or anywhere to go. In some states, more services are available to parolees than to exonerees. During long years in prison, families and friends have disappeared. Any money in the bank before conviction has probably been spent on legal fees. Most exonerees struggle immediately to find housing and work and many bear the weight of a conviction on their record for years before they are officially cleared."
Many jurisdictions limit compensation, or make it practically unattainable, or both. For example, Wisconsin limits compensation to a measly $5,000 per year and a total of $25,000; New Hampshire caps compensation at $20,000; Montana offers only educational aid. And typically an exoneree seeking compensation has to demonstrate actual innocence, a high bar to clear. Convictions get reversed for lots of reasons – constitutional violations, procedural errors, insufficient evidence – but having your conviction overturned isn’t the same as being shown to be innocent. Some states deny relief to exonerees who pleaded guilty (which plenty of innocent defendants are pressured to do) or contributed to their own conviction (typically by false confession). This means even if later you can prove you’re innocent, you might not get any compensation. Some states even restrict compensation to exonerees who’ve managed to get pardoned.
And sometimes the state keeps moving the bar around. Recently, California denied compensation to John J. Tennison, who’d been wrongly convicted of murder. The attorney general had concurred in Tennison’s factual innocence in a separate court case, which resulted in a court order declaring that Tennison was factually innocent. But when Tennison tried to obtain restitution, the attorney general contested his actual innocence in front of the compensation board, and an appellate court held that neither the government’s agreement that Tennison was factually innocent nor the resulting judgment prevented him from doing so.
As strange – even Kafkaesque – as it may seem, after a criminal defendant has exhausted his direct appeals (those available as a matter of right), actual innocence won’t necessarily get him a new trial. This is an example of the principle of finality. Courts aren’t supposed to continually weigh and reweigh the evidence in a case. The jury or trial judge weighs the evidence once, and after that it becomes harder and harder to attack findings based on the evaluation of evidence. Once the appeals get used up, the judgment is final. You can’t just argue the jury got the wrong answer; instead you’ve got to show some sort of denial of constitutional rights or present new evidence that wasn’t previously available.
Which, of course, brings us back to DNA testing. So far 206 people have been exonerated based on DNA evidence in the United States since 1979. More than half – 122 by my count – have not received compensation. As a result of the rise of DNA testing, more states are facing the compensation issue, and some of these are now adopting laws to address it. Of the 22 states with compensation statutes listed above, five joined the club only in the last four years.
But what about states that offer no compensation? Can an exoneree sue for damages? Mike’s got the basic idea right. The state has what we call sovereign immunity, which means it must waive its immunity in order to be subject to suit. This is most commonly done by statute, and as you might expect, sovereign immunity varies from state to state. What this all means is that suing the government generally isn’t easy and it typically takes plenty of time, which isn’t something exonerees always have. If you’re homeless, money five years from now doesn’t help.
Moreover, in most jurisdictions, you’ve got to show something like gross negligence or actual malice in order to recover. But in many cases of wrongful conviction no legal wrong has been done to the claimant. The claimant may have been legitimately convicted by an honest prosecutor, well-meaning eyewitnesses, a competent and honest judge, and jurors acting in good faith. Or he may simply lack evidence of official wrongdoing. In such a case, the exoneree hasn’t suffered a legally recognizable injury. If he files a lawsuit based on common law, he’ll lose. Compensation statutes are designed to address a singular kind of wrong that tort law largely can’t.
So: assuming compensation is an option, what’s a fair award under the circumstances? Convicted felons unquestionably suffer losses whether they’re justly or wrongly convicted: clear financial detriment, likely psychological damage, and, sometimes, actual physical injury. In addition to all this, the wrongfully convicted often suffer needless and unwarranted injury to their reputation. What’s all that worth? In Limone federal judge Nancy Gertner reviewed recent cases and concluded the going rate for a year of wrongful incarceration was $1 million. We’re not talking about punitive damages, which are seldom recoverable against the government; these are damages ordered to compensate the plaintiff and his family for their actual losses. Of course, that’s in a conventional prison on U.S. soil. Maybe in the next decade or so some judge will have to try and put a dollar figure on a year in Guantánamo.
Send questions to Cecil via firstname.lastname@example.org.
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