Introduction
For over two centuries, the United States has been knowingly plagued with innocent people being wrongfully convicted of crimes.1 At the heart of America’s first wrongful murder conviction case2 laid issues that are still present in modern-day wrongful convictions. In 1819, seven years after Russell Colvin disappeared from town, brothers Jesse and Stephen Boorn were arrested for his murder.3 Prior to trial, their uncle claimed Colvin appeared to him in a dream, confirming he was slain and directing the uncle to the area of his remains.4 Near that area, a dog found several bones, which a few local doctors pronounced as human.5 Subsequently, an arrest warrant was issued for Stephen, who had recently moved to another state; however, since Jesse was living locally, he was taken into custody and placed in a cell with a forger named Silas Merrill.6 Merrill quickly told authorities that Jesse confessed to him about both brothers’ involvement in the crime, and he agreed to testify against the brothers in exchange for his release—which he did and was thus granted immediate release.7
Hearing of Jesse’s confession, Stephen panicked and claimed self-defense in a written confession to the murder.8 Around the same time, doctors reexamined the earlier-discovered bones and determined that they were actually of animal nature—not human.9 With a deep-rooted belief in the strength of the brothers’ confessions and Merrill’s testimony, the prosecution still moved the case forward to trial.10 Consequently, the brothers were both convicted of Colvin’s murder and sentenced to death.11 The brothers were only later exonerated when Colvin himself returned to town, alive and well.12 Though it has been over two hundred years since the Boorns’ exonerations, the criminal legal system has yet to rectify the very problems that led to their wrongful convictions.13
As of December 2022, over 3,000 individuals have been exonerated of their wrongful convictions after having lost a combined total of almost 30,000 years of freedom.14 These erroneous convictions are ordinarily caused by little to no fault of the exonerees, yet their lives are still irreparably harmed because of them. For instance, exoneree Luke Wirkkala recalled that for him, part of the traumatic outcome of being wrongfully convicted included having eight years of freedom taken from him, losing his home, and getting a divorce.15 Considering the systemic flaws that have wreaked havoc on the legal system,16 leading to an overwhelming amount—neither randomized, nor unavoidably accidental—of wrongful incarcerations, it is clear that states should compensate for the cruel loss of life, years, and experience that could have been prevented. Regardless of the reasonableness of the state’s initial prosecution of an exoneree, innocent people unequivocally deserve reparations for their unwarranted time spent imprisoned.
Although nothing could thoroughly counteract or “make up for the time and opportunities [arrogated] from exonerees,”17 several state and federal legislatures have enacted laws to begin effecting positive change in exonerees’ lives by providing them some relief.18 Though various states continue to pass new compensation laws,19 as of February 2023, there are still twelve states, including Georgia, Pennsylvania, and South Carolina, without legislative compensatory measures.20
Among the exonerees stranded in a state without any compensation statute in place was John Jerome White, who wrongfully spent more than twenty-two years incarcerated for a home invasion and rape of an older woman.21 Once exonerated based on DNA evidence, White was thrust back into freedom in Georgia without any official avenue for recourse.22 Thus, after almost three decades of incarceration, White still had to spend another two years lobbying the Georgia legislature to introduce a private bill on his behalf so that he could receive compensation.23 Eventually, he succeeded and was paid—though less money than he originally asked for—through the private bill.24
As it is, exonerees face an arduous path to receive compensation for their wrongful imprisonment. Unfortunately, this path usually does not even end in ample reparations,25 given that both the process to receive compensation and the actual compensation itself set a low bar for exonerees to fail post-release. Accordingly, given the numerous injustices that play a significant role in wrongfully convicting individuals and the toll a wrongful conviction takes on an exoneree, the urgency for enacting ample compensation statutes is evident.
This Note will proceed in three Parts, arguing the case for adequately compensating wrongfully convicted individuals. Concurrently, relevant features of the thirty-eight states’ existing compensation statutes will be analogized and distinguished to determine which characteristics to include as part of the proposed improvements legislatures should consider. Part I will first address the habitually present causes of wrongful convictions.26 This Part will then discuss the struggle wrongfully convicted individuals face to gain release from prison due to prosecutors’ tenacity and tactics to keep individuals who they convict incarcerated.27 Subsequently, Part I will outline the advancements made within the wrongful conviction compensation realm.28 Part II will then highlight the typical issues present within existing wrongful conviction compensation statutes.29 This Part juxtaposes the efficacy of adjudication processes executed through administrative boards versus within the court system,30 illuminates how certain statutory eligibility requirements are limiting,31 and emphasizes the importance of providing exonerees with ample monetary and nonmonetary awards.32 Hence, Part III proposes that adjudication processes must be streamlined by utilizing the best aspects of both state claims boards and the court system, eligibility requirements must be less restrictive and more inclusive, and awards must be provided to exonerees through more holistic, individualized arrangements.33
I. Background: From Conviction to Compensation
“The path to receiving compensation for a wrongful imprisonment is generally three steps: a wrongful conviction, an exoneration, and then ultimately compensation for wrongful imprisonment.”34 The following Sections will discuss each of these steps in turn.
A. Common Miscarriages of Justice That Lead to Wrongful Convictions
Wrongful convictions stem from an amalgam of factors in a perfect storm—part human errors, part willful mistakes. Among the most prevalent causes of wrongful convictions are prosecutorial misconduct, eyewitness misidentifications, false confessions, jailhouse snitch testimony, faulty forensic evidence, and ineffective assistance of counsel.35 In fact, while the circumstances leading to each wrongful conviction case are unique, they consistently comprise some permutation of these elements.36 Comprehending these numerous systemic failures will help demonstrate the necessity for each state to restitute exonerees who have been aggrieved by its failures.37
1. Prosecutorial Misconduct
Since prosecutors themselves are vital to the interworking of the criminal legal system, a discussion of prosecutorial misconduct should be prefaced with a caveat: not all prosecutors are unscrupulous, perhaps even most are not, but those who are commit harms with egregious consequences.38 This Section focuses on the latter type of prosecutor. As another leading cause of wrongful convictions, prosecutorial—or official—misconduct is detrimental to the criminal legal system. This type of misconduct refers to prosecutors’ overt actions to ensure a defendant is convicted regardless of evidence contradictory to their guilt.39 It primarily occurs through the use of false testimony—in the form of inaccurate eyewitnesses40 or perjured jailhouse snitches41—or through improper summations and exculpatory evidence suppression.42
In fact, a common theme of misconduct relates to necessary evidence being withheld from the defense.43 Though Brady v. Maryland requires prosecutors to provide the defense with exculpatory evidence,44 prosecutors still have complete control over what evidence is shared with the defense, leading to numerous issues regarding their discretionary powers.45 For instance, consider the case of Dennis Allen and Stanley Mozee, two men convicted of a murder they did not commit and incarcerated for fifteen years, all while Rick Jackson, the assistant district attorney assigned to their case, held and hid the very evidence that could have proven their innocence.46
Prosecutors are meant to be defenders of the people, protecting society from the guilty while upholding the law.47 However, the criminal legal system functions to motivate some prosecutors with reasons—e.g., societal pressure to convict a criminal quickly,48 institutional incentives based on high conviction rates,49 or absolute immunity50 coupled with a general lack of punishment for committing misconduct51—to forgo their moral and legal obligations and commit misconduct by manipulating the system when beneficial to them. Relatedly, prosecutors’ conscious and subconscious tunnel vision to pursue specific individuals is often seen when they do not have a clear—or any—suspect, zeroing in on a likely candidate and building a case around them instead of taking the necessary time to follow the evidence and reach a proper conclusion.52
For example, the Exonerated Five case, in which five young boys were incorrectly convicted for attacking and raping a woman in Central Park, demonstrated prosecutors’ desire for a speedy conviction and determination as a result of tunnel vision.53 Because the brutal attack was extensively publicized, prosecutors were desperate to put anyone away for the crime, leading them to encourage police officers to obtain a confession at any cost and subsequently rely heavily on these false confessions over circumstantial DNA evidence.54 Prosecutors were certain their initial arrests were accurate—based on the boys’ false confessions—confident that they had caught merely some of the right perpetrators, just not all of them.55 Though the boys were excluded as DNA matches from the start, the prosecutors continued forward with the case as they were pressured to convict.56 Unsurprisingly, the boys were wrongfully convicted and consequently incarcerated for decades.57 Years later, when the actual perpetrator confessed, and the DNA evidence matched him, the boys—now men—were exonerated, and their confessions proved to be false.58 Though the men have been unequivocally exonerated, their former prosecutors still steadfastly believe they are guilty.59
2. Eyewitness Misidentification
The reasonable person—namely, a trial juror—inherently wants to trust witnesses who are confident of a perpetrator’s identity.60 However, eyewitness misidentification—especially in the face of a confident identification61—is a leading cause of wrongful convictions, uncovered in a majority of exonerations.62 For example, in State v. Guilbert, the Supreme Court of Connecticut recognized that extensive scientific research, as evidenced in hundreds of studies, exposed the “fallibility of eyewitness identification testimony.”63 Not only are people frequently unreliable in times of high stress—like when someone witnesses a crime—as one’s memories may skew or misremember facts,64 but also the subsequent methods of obtaining eyewitness identifications significantly influence the reliability of that identification.65
Specifically, researchers identified two types of variables, system and estimator, that affect eyewitness accuracy.66 System variables, which can be controlled by the criminal legal system, include circumstances such as the use of photo lineups or positive reinforcement from officers after the witness identifies an individual.67 Estimator variables, on the other hand, cannot be controlled by the criminal legal system, and include lighting conditions at the crime scene and whether the perpetrator used a mask.68 The Guilbert court supplemented the variables with an illustrative list of other shortcomings that disturb the accuracy of eyewitness identification.69
While also recognizing the frailty of eyewitness testimony in Manson v. Brathwaite, the United States Supreme Court set forth a two-part test to determine whether an identification is reliable: first, judges must determine whether the identification procedures were unnecessarily suggestive; and, second, if they were, judges must examine five factors to determine whether the identification was still reliable.70 After the Manson decision, state supreme courts followed and enhanced the two-part test to assess the reliability of eyewitness identifications.71
3. False Confessions
It is not abnormal for people to disbelieve and question how or why a person who is alleging their innocence would initially submit a false confession to a crime they did not commit.72 However, modern case law and studies uncover a consortium of reasons why individuals provide false confessions.73 Namely, internal dispositional risk factors—including a suspect’s age, gender, level of education, and mental impairment—impact an individual’s susceptibility to falsely confess.74 The police’s ability to manipulate these personal characteristics with ease is then reflected in the external situational risk factors associated with false and coerced confessions.75 Among other problems,76 these situational attributes can relate to the suspect’s confinement time and conditions, such as denial of access to the bathroom, human contact, sleep, or food;77 physical parameters of the interrogation room, such as whether it is windowless or has a clock;78 and interrogatory procedures, such as the two-step interrogation,79 minimization,80 or maximization techniques.81
These situational factors played out in the 1944 United States Supreme Court case Ashcraft v. Tennessee, in which police officers took the defendant to the county jail to interrogate him regarding his involvement in the murder of his wife.82 His interrogation lasted thirty-six hours straight, with no breaks for the defendant despite the fact that the police continued to switch in and out of their shifts.83 Eventually, the interrogation ended in the defendant’s alleged confession, in which he confirmed that he hired a man to kill his wife.84 Justice Black concluded that the environment surrounding the defendant’s interrogation was “so inherently coercive” that it would be “inconceivable” to allow prosecutors to use this strategy and assert that the alleged confession was voluntary.85 Nevertheless, although Ashcraft occurred almost eight decades ago, this type of coercive strategy is still harnessed today to elicit false confessions, which courts continue to deem admissible at trials.86
4. Jailhouse Snitch Testimony
As arguably the most unreliable form of testimony, jailhouse snitch testimony entrusts convicted individuals with nothing to lose—but plenty to gain87—to testify to alleged confessions made by their peers in jail or prison.88 The convention of using this type of “witness” is highly controversial and not well regulated.89 From a high-level perspective, federal and state laws generally bar witness bribery in both civil and criminal matters.90 Paradoxically, jailhouse snitch testimony would not exist without allowing an elusive form of witness bribing.91 Under this regime, prosecutors are permitted to offer varying agreements—ranging from sentence reduction to case dismissal92—to an informant so long as the informant provides some testimony—even if capricious—incriminating the defendant.93
Though this type of deal is seemingly a prohibited form of bribery, the Supreme Court has perpetually approved using jailhouse informant testimony.94 In Hoffa v. United States, Justice Stewart conceded that the government’s jailhouse informant was “compensated . . . for his services” and explicitly acknowledged that he may have even had more motive to distort the facts than most informants.95 Nevertheless, Justice Stewart still legitimized the use of the informant’s testimony, subjecting this and future types of informer and testimonial evidence to only be tested pursuant to the “established safeguards of the Anglo-American legal system” at trial.96 After this disappointing holding, legal scholars are left to wonder the following: why and at what point does well-established federal and state law fall to the wayside if the judiciary and legal system protect the admissibility of bribery-induced jailhouse informant testimony?
5. Faulty Forensics
Though, in its nature, science is a dependable tool for testing evidence, false or misleading forensic evidence—also known as junk science—has contributed to almost a quarter of wrongful conviction cases nationally.97 Relying on scientific testimony that is unverified or that exists without a national standard has led to heaping issues within the criminal legal system, both for wrongfully convicted individuals and for those who contribute to the application of junk science.98 Without a generally accepted benchmark for a scientific standard, scientific procedures are needlessly discretionary, and the interpretation of forensics that follows is susceptible to fraud.99
A prime example of the dilemma accompanying unmerited discretion is the controversy over evidence provided by forensic odontologists.100“experts” in bite-mark analysis, who are board certified and publish their own professional journals, purportedly match an apparent bite mark on a victim with the dentition of its perpetrator.101 Based on the alleged reliability and qualifications of these scientists and the importance of the forensic analyses, it follows—at least theoretically—that courts have upheld the admissibility of this type of evidence.102 However, no matter how frequently it is admitted to courts, bite-mark testimony does not actually meet the Daubert admissibility standard required of scientific evidence.103 Reasonably skepticized for its “murky” nature,104 forensic odontology is unreliable due to the lack of an industry-wide standard supported by legitimate data.105 That unreliability is evidenced by numerous wrongful conviction cases in which the defendant was convicted based heavily on bite-mark testimony only to be later exonerated due to DNA tests.106
Another side of faulty forensics is based in conscious deceit or misapplication of science. For example, laboratory technicians’ independence should be analyzed under a microscope since technicians and law enforcement officials often work closely together.107 This was the case with Annie Dookhan, a once-praised lab chemist for the government who was later exposed as an epic fraud.108 In 2009, Dookhan was working at the Massachusetts state drug lab, and while other chemists averaged 1,981 tests that year, she had contemporaneously run 6,321.109 This incredulous efficiency made Dookhan a star chemist for prosecutors, who went directly to her to ensure quick—and favorable—results.110 As one could anticipate, thrilled with the speedy and triumphant results, prosecutors ignored the impossibility of Dookhan’s work.111 Dookhan reaped the praise,112 and consequently, thousands of defendants were wrongfully imprisoned.113 Investigators eventually uncovered the truth about Dookhan’s tests: she would report that masses of samples tested positive for drugs, even though she only tested a few, or if the samples that she tested came back negative, she would add cocaine into them from another sample.114 Though Dookhan never confirmed why she falsified a considerable number of reports, it seems like it may have been because she felt as though she was a part of the prosecutorial team and was motivated by recognition for her achievements.115 Thus, her desire for esteem led to purposeful fraudulent forensic conclusions.
6. Ineffective Assistance of Counsel
Unconstitutionally poor defense counsel is perhaps the most tragic cause of wrongful convictions from the perspective of a defendant and serves as a serious cause assessed in almost a quarter of DNA exoneration cases.116 The right to a fair trial is of utmost importance in the American legal system, and there is a general consensus that central to this right is effective defense counsel.117 Criminal defendants are guaranteed assistance of counsel under both federal and state constitutions,118 which courts have interpreted to translate to and encapsulate this “effective” assistance of defense counsel.119 This generalized right does not equate to defense attorneys always providing effective assistance of counsel; public and private attorneys alike are obliged to be their clients’ most zealous advocate; but, in fact, there are a variety of cases in which both types of defense counsel reprehensibly err and do not act as such.120 In fact, Clayton B. Drummond and Mai Naito Mills conducted a study that revealed the most common forms of inadequate legal defense, including numerous pre- and mid-trial offenses.121 Nonetheless, public and private attorneys face different obstacles due to the nature of their positions. For instance, indigent defendants, specifically, desperately rely on public defenders, who are typically underfunded and overburdened with their caseloads and do not have time to invest in each of their clients personally, whereas this is not typically a problem that private defense attorneys face.122 Aside from a lack of funding, subpar defense counsel may also result from poor case management, lack of quality control, low motivation, or a presumption that the defendant is guilty.123
The consequences of ineffective counsel do not stop at trial either. For instance, inadequate defense work can have catastrophic impacts on defendants’ future appeals and habeas claims. Take Sonny Bharadia, a defendant whose motion for a new trial was denied because gloves worn by the attacker—which implicated his co-defendant—were originally presented at trial before they were tested for DNA, thus disqualifying them from being considered “newly discovered evidence,” which would have warranted him a new trial.124
Additionally, serving prison time unnecessarily is another consequence of ineffective-attorney–caused wrongful convictions125—or any other type of wrongful conviction, for that matter. The problem is that despite how dire the consequences of inadequate legal defense are, the two-prong test from Strickland v. Washington sets quite a high bar for defendants to qualify for a Sixth Amendment claim.126 Thus, defendants are rarely granted appellate relief on ineffectiveness grounds.127 Even under various flagrant circumstances—such as cases where the attorney slept through a portion of trial,128 was drunk during trial,129 used illegal drugs during trial,130 or did not call potential witnesses at trial131—courts still uphold defendants’ convictions.
B. Strategic Maneuvers on the Path to Exoneration
After all the horrors that lead to a wrongful conviction, the fight for exoneration is a laborious battle. As discussed in Section I.A.1, in line with their tenacity to convict a specific person,132 prosecutors are not often willing to yield a “loss,” as that would reflect poorly on their legal skills in their community.133 Thus, instead of, for example, being forthcoming with helpful Brady evidence, dismissing a case outright, or even relitigating a case, prosecutors will offer pleas—such as an Alford plea134—to desperate, innocent incarcerated persons.135 Professor Michal Buchhandler-Raphael delves into the power imbalance inherent in plea deals:
The problems associated with plea agreements have been thoroughly documented. The prevalent practice results in convicting over 90% of criminal defendants without trial. . . . [O]ne of the key problems with plea agreements is the tremendous leverage they provide prosecutors in pressuring defendants to plead guilty to lesser included crimes.
. . . [Defendants could be] placed in an untenable position of choosing between pleading guilty to manslaughter to avoid the possibility of a murder conviction, accompanied by a harsh term of imprisonment, or taking the risk of going to trial and trying to persuade the jury [of their innocence] . . . and be acquitted altogether of any crime.136
For example, in North Carolina v. Alford, acknowledging the strength of the case against him, the defendant pleaded guilty to second-degree murder to avoid standing trial for first-degree murder with a possible death penalty sentence, though he avidly proclaimed that he did not commit the murder.137 The Supreme Court upheld the defendant’s plea on appeal, reasoning that it is constitutional for judges to accept a defendant’s guilty plea even if the defendant still maintains their innocence.138
Alford had drastic effects on prosecutors’ strategy to keep their suspects incarcerated.139 After serving years or decades in prison, some individuals may not want to relitigate their case and instead will take a plea deal to minimize their sentence.140 Though legally Alford pleaders are not considered exonerees, they may have their own personal reasons for taking a guilty plea despite attesting to being truly and wholly innocent.141 Under an Alford plea, if a convicted person pleads to a lower charge on appeal and has already served enough time to suffice the sentence for that charge, they will be released from prison.142 However, this type of guilty plea is inherently flawed as it concedes that officials are “at least partially acknowledging a legitimate claim of actual innocence.”143 Moreover, the consequence of this verdict is that instead of leaving prison with a clean or more forgiving slate, individuals are left with a guilty plea on their record, which affects their entire future post-incarceration, including their eligibility for compensation in certain states.144
C. Evolution of Compensating the Wrongfully Convicted
Over a century ago, Professor Edwin Borchard was the first to establish the concept of compensating the wrongfully convicted.145 Soon after Borchard breached the topic, Wisconsin followed suit, creating a no-fault wrongful conviction compensation statute.146 Since then, over half the states in America have enacted their own wrongful conviction compensation laws.147 The legislatures incorporate different elements into the statutes, including the avenue for adjudication,148 eligibility for a compensation claim,149 the standard of proof to prove such eligibility requirements,150 monetary awards,151 and reintegration services.152 For instance, California has one all-encompassing statute that lays out the groundwork for a multitude of compensatory measures, including transitional services and monetary offerings,153 and a separate statute that sets the standard for eligibility of a claim, the designated factfinder, and the calculation for the monetary appropriation based on the exoneree’s time served.154 However, as scrutinized throughout Part II, though much progress has been made since Borchard started the conversation long ago, over a quarter of U.S. states still have no compensation statute in place,155 and none of the states that do have laws in place have thoroughly sufficient statutes to reach the apex of relief that can be imparted to exonerees.
II. Shortfalls Within Existing Statutes
Post-incarceration, exonerees face arduous challenges in securing “housing, healthcare, employment and training, access to financial resources,” and legal assistance to help mitigate the consequences of their wrongful incarceration.156 These struggles stem from spending vital years behind bars without access to a rapidly modernizing society and a “stigma-by-association” that accompanies being incarcerated—regardless of innocence.157 Though many states have passed measures through varying compensation statutes to ameliorate the strains that exonerees face,158 most of the adopted laws are wholly deficient due to ineffective adjudication routes, extreme standards, sparse monetary compensation, and a dearth of reintegration services provided.159
A. Adjudication Process
Presently, statutes handle compensation claims through an administrative process or civil suit.160 Administrative hearings, which are meant to streamline and ease an exoneree’s path to remedy,161 designate claims to state commissioners or claims boards.162 While those entities may be perceived as “less daunting” than appearing in front of the court, members of these nonjudicial boards will not have the same extensive knowledge and experience weighing evidence and assessing claims as do distinguished members of the court,163 which could lead to misunderstandings of the facts and how to interpret the law.
For example, Texas’s statute—which is well known as one of the most comprehensive and generous compensation statutes164—requires a petitioner to file their claim with the comptroller’s judiciary section to apply for compensation.165 The comptroller will then assess the exoneree’s eligibility and amount of compensation owed, and if denied compensation, the exoneree may bring action for mandamus relief.166 Though this process is relatively straightforward, a comptroller is well versed in monetary matters,167 thereby, they are likely not as proficient in weighing and assessing evidence to determine whether an exoneree has met their requisite burden of proof. Accordingly, state commissioners and other similar claims boards may be more prone to making errors by misinterpreting evidence and misconstruing evidentiary requirements.
Conversely, other states allot for adjudication within the court system.168 The issues with filing a lawsuit against the state include a lengthy, more drawn-out proceeding and a potential directly opposing adversary.169 Though perhaps “more onerous” on the petitioner to file directly with the court,170 the judiciary has the essential experience to gauge a claimant’s eligibility on these consequential claims.171
B. Eligibility to Receive Compensation
1. Exclusive Applicability
Naivete must be eschewed when understanding the legal and ethical need to compensate innocent exonerees. The criminal legal system exists to impart justice upon those who commit crimes and to protect those who are genuinely innocent.172 However, as it is, not all people who are wrongfully convicted are factually innocent.173 Thus, while procedurally wrongfully convicted individuals have a legal right to not be imprisoned, factually innocent yet wrongfully convicted individuals have a deeper, moral right to be recompensed. Accordingly, to avoid frivolous claims and ensure support is provided to those worthy, eligibility requirements within compensation statutes usually include at least four significant factors: First, the individual did not commit, or take any part in, the crime for which they were convicted.174 Second, the individual’s conviction was reversed or vacated.175 Third, either the case against the individual was dismissed and they were not retried, or they were retried and found not guilty.176 Fourth, the individual’s suit concluded on the basis of their innocence.177
Alternatively, specific stricter statutes disregard the first three factors, establishing that the only available path for an individual to be considered for compensatory eligibility is by being pardoned, and in those situations, the only remaining factor that applies is that the pardon is granted on the basis of the individual’s innocence.178 These states that solely permit eligibility pursuant to a gubernatorial pardon—a full pardon from a governor—severely restrict a claimant’s possibility of obtaining relief.179 Forcing a claimant to perform the nearly impossible task of procuring a politician’s backing leaves their entire fate in the hands of an individual person, likely driven by external influences other than just assuring an innocent person is granted their freedom.180 Furthermore, requiring pardons at all as the basis to establish an exoneree’s innocence is problematic as pardons are meant to block an individual from receiving punishment for a crime they have committed, whereas exonerees have explicitly not committed the misdeed for which they are imprisoned.181
The amalgamation of these requirements poses an intricate concern for many wrongfully convicted people. Notably, not all people who are factually innocent yet wrongfully convicted are among those exonerated; in fact, exonerees constitute merely a small percentage of the whole amount of truly innocent imprisoned individuals.182 Consequently, for those wrongfully convicted individuals who are not officially exonerated and instead decide to plead guilty, as with an Alford plea, the prohibitive statutory requirements bar them from eligibility for compensation.183 Alford pleaders are not officially recognized as innocent or having been wrongfully convicted—as they did, plainly, plead guilty—but it is still impracticable that every one of those individuals claiming their innocence under these pleas is actually guilty.184 Regardless, as the compensation statutes do not permit investigating the pleader’s intent, compensatory measures will not be allotted if an individual cannot satisfy all of the statutory requirements.185
Aside from the issues presented with guilty pleaders, other statutory eligibility criteria within different states also outright prevent exonerees from collecting any measures set out for them.186 Florida’s wrongful conviction compensation laws are dispositive of this issue. Though Florida provides the typical $50,000 for each year of wrongful incarceration,187 its statutory eligibility criteria prevent the statutes from achieving their primary purpose and working for the very people for whom they were created.188 The statute’s “clean hands” criteria disqualify an individual from receiving compensation if they have a violent felony conviction—or more than one nonviolent felony conviction—on their record, regardless of whether it is entirely disconnected from the one for which they were wrongfully serving time.189
Exoneree Clifford Williams was one of the many deemed ineligible for compensation under Florida’s statute.190 In 1976, Williams and his nephew, Hubert Nathan Myers, were wrongfully convicted of murder before serving forty-two years in prison.191 Upon being one of the first exonerees freed as a result of investigatory work by a Conviction Integrity Unit in Florida,192 Myers was promptly compensated with a two million dollar payout.193 Sadly, Florida’s law did not also allow Williams to recover—despite the fact that he was wrongfully imprisoned for this crime for decades—because he had a preexisting criminal record for crimes unrelated to the murder from when he was eighteen and twenty-three, a true lifetime ago for the man.194 In short, the State took over forty years of Williams’s life, an unfathomable wrong, yet because he also committed some other separate legal wrongs, Florida’s compensation law rejected his request for justice.195 After decades of misfortune, Williams was lucky enough to obtain support from a compassionate legislature,196 though tragically, endings like his—receiving personalized compensation after being denied relief from the state wrongful conviction compensation statute—are few and far between.
2. Harrowing Standard of Proof
Compensation statutes also set out a specific standard of proof to meet the aforementioned eligibility requirements. The burden to prove one’s innocence in order to be eligible to obtain compensation varies through different statutes, mainly vacillating between requiring claimants to show by clear and convincing evidence197 or by a preponderance of the evidence198 that they did not commit the crime of which they were convicted. The clear and convincing evidence standard seemingly addresses legislatures’ desire to ensure that state funds are not misused to compensate those unworthy and instead only aids those who are genuinely deserving and were wronged and imprisoned despite their innocence.199 At the same time, this more stringent standard places a loftier burden on the claimant to prove their case.200
Meanwhile, the preponderance of the evidence standard assesses and balances the evidence from both sides, ultimately leaning on the side with greater weight or the most convincing evidence.201 One benefit of this standard is that it sets a lower burden of proof—merely requiring the claimant to demonstrate that it is “more likely than not that [they] did not commit the crime”202—consistent with the burden used for standard civil cases.203 This burden also allows the claimant to focus on major issues without having to contest every insignificant inculpatory fact204—as opposed to proving that it is highly probable or reasonably certain that they did not commit the crime.205 Although, the preponderance standard does lend itself to “room thinking” ideology206 and skepticism from legislatures.207
C. Monetary Disbursements
At the bare minimum, wrongful conviction compensation statutes provide just that—monetary compensation. Professor Jeffrey Gutman assigned existing statutory compensation structures into three categories,208 under which the statute either prescribes: a specific salary per day or year of incarceration without an overall compensation cap (Category 1);209 a finite payout with a compensation cap (Category 3);210 or a combination of both (Category 2).211 While compensation is justifiably owed to exonerees, many of the rates currently enumerated within the statutes do not provide enough compensation to begin adequately remedying the injustice of a wrongful conviction.212 Hence, reintegration programs are integral to supplement and rectify this gap.
D. Noneconomic Reintegration Services
Similar to the purposes of the wrongful conviction statutes,213 a goal of tort law—aptly labeled under the moniker of compensatory damages—is to remedy the victim in an attempt to restore them to their position, at least economically, making them whole again as if the wrong never occurred.214 However, applying the concept of compensatory damages under wrongful conviction claims is problematic because exonerees need help reacclimating to society, and purely economic damages routinely do not succeed alone in making them, the injured victim, whole again.215
In attempting to ease the transition between prison life and freedom, legislatures have formed reintegration services for convicts post-release.216 The issue with these programs is that they are only available to parolees,217 convicted criminals who have been permitted to serve a portion of their sentence outside of prison.218 Due to the fact that exonerees neither committed a crime nor were meant to be imprisoned from the outset, they are no longer under state supervision upon release.219 Ironically, then, after leaving prison, exonerees do not qualify for support through the official reentry services and are thus forced to look to their state-designated compensation schemes to receive remedial aid.220 However, only about half of the existing compensation statutes provide services to exonerees to help them reacclimate back into society,221 and none of them currently account for every reintegration challenge exonerees face.222
The statutes do not account for unique compensation for each exoneree, even though every individual has different characteristics and legal needs depending on their circumstances.223 For instance, some wrongfully convicted individuals are simultaneously exonerated and released, whereas others are released and then subsequently exonerated some undetermined time later.224 As the individuals within the latter group are classified as parolees upon release, they would have access to state-sanctioned reentry programs, requiring less immediate resources.225 On the other hand, the former group is more likely to immediately need a range of support that is not accessible to them through reentry programs.226
Varying expungement processes—the means of removing a conviction from one’s criminal record227—also exacerbate the need for official state-sponsored programs. Not all states automatically expunge one’s record upon exoneration.228 As such, depending on their state of exoneration, exonerees may still be left with a criminal record, which is challenging to purge without the expertise of an attorney, whom many exonerees do not have the financial resources to engage.229 Since many employers are staunchly against hiring people with any criminal record—even those proven innocent—earning gainful employment is among the hardships that exonerees must overcome.230 Similarly, private landlords and public housing authorities also legally deny housing on the basis of an existing criminal record.231 Lastly, either through natural medical problems or medical problems resulting from incarceration—such as psychological trauma or infectious diseases like asthma—exonerees have a greater necessity for healthcare access.232 Unsurprisingly, however, they do not have access to treatment often because of its cost or because of healthcare’s connection to employment.233
Some existing statutes currently lack extraneous compensation beyond monetary considerations.234 Contrarily, the Innocence Network has a framework to help address exonerees’ individualized needs—including assessing their social support and living situation, acquiring valid official identification documents, evaluating their health needs pre-release, getting local support, and determining the necessity for legal assistance post-release.235 Without a personalized experience—as exhibited by the Innocence Network’s exoneration checklist—state compensation statutes are not equitably compensating exonerees.
III. Holistic Proposal
In order to elevate the legal compensation process to be efficient yet fair, statutory changes or implementations should include a comprehensive adjudicatory process of handling claims, inclusive eligibility benchmarks, and a reasonable standard to prove one’s claims. Furthermore, when adopting a compensation plan, statutes should employ a holistic approach—providing money and societal assistance—consistent with recommendations from criminal legal scholars236 and the Innocence Project’s model legislation.237
A. Legal Procedure
The overhaul of the current set up of the adjudicatory process of wrongful conviction compensation claims proposes a multi-venue adjudicatory process to rightly handle claims, an addition and slight modification to typical existing eligibility requirements, and a justifiably fair burden of proof. First, wrongful conviction compensation claims should initially be filed as part of an administrative process to a state-sanctioned board. Successively, the most pragmatic adjudicatory process is for the claim to be sent to the courts, which can appoint a panel experienced in settling tort damages—as seen in Minnesota’s compensation statute238—to then review the evidence presented to determine the claimant’s eligibility and make a recommendation for compensation back to the state board.239 In conjunction with this standard procedure, gubernatorial pardons should be permitted to demonstrate one’s innocence, in contrast to being the requisite sole path to proving one’s innocence.240 Conclusively, the original board can utilize the court’s recommendation to then calculate and parse out an adequate remedy for the exoneree, as seen in Texas’s compensation statute.241
Second, the demarcation of innocence—at least as it pertains to the statutory requirements to determine one’s eligibility for compensation—should be expanded. Currently, eligibility standards require the criminal case against an individual to end on the basis of some legal display of innocence.242 Nonetheless, there should be three avenues for an individual to pursue in order to establish their innocence: First, the individual’s case was reversed or vacated, then the case was dismissed, and the individual was not retried. Second, the individual’s case was similarly reversed or vacated, but the individual was retried, and then conclusively found not guilty.243 Third, under circumstances in which the individual’s case was not reversed or vacated, but rather the individual took a plea deal yet is still pronouncing their innocence, the adjudicating body should balance a list of mitigating circumstances against aggravating factors to determine if the individual is innocent for the purposes of compensation under the statute.
Although mitigating factors are more frequently considered in conjunction with sentencing hearings,244 prosecutors’ efforts to take advantage of these pleaders at their lowest point should amount to a sufficient enough reason to circumvent the habitual eligibility practices within compensation statutes for how to prove one’s innocence. Accordingly, an illustrative list of mitigating circumstances that could lead to compensation eligibility should at least include whether the petitioner maintained their innocence throughout their case;245 whether the petitioner took a plea bargain, such as an Alford plea, for a lowered charge or sentence reduction; and whether there was any type of misconduct from someone other than the petitioner that played into their conviction. Importantly, for conservative legislatures that would like to maintain or incorporate a “clean hands” qualifier within their statutes,246 when weighing the aggravating factors juxtaposed against the mitigating circumstances, legislatures can make a felonious criminal record a circumstance to consider, instead of forcing it to be an immediate, absolute bar to recovery for all exonerees. Though some opponents to this aspect of the proposal may contest that expanding eligibility in this way will open the floodgates for more claims, states can bypass this worry by implementing safeguards in their statutes. These safeguards could include stating that if a claim is found to be frivolous—i.e., the individual who pleaded guilty was truly guilty—then they will face some form of a legal or fiscal repercussion. Alternatively, and more conservatively, opponents who are weary of implementing this aspect can contemplate heightening the standard of proof for this avenue of proving one’s innocence, as the individual would still have a guilty plea on their record.247
Third, in hearings related to the wrongful conviction compensation statutes, petitioners should only have to establish their claims by a preponderance of the evidence, with courts ensuring that their eligibility considerations are void of any “room thinking”—which essentially equates to a determination by the clear and convincing evidence standard.248 This burden and assurance will aid the quest to compensate innocent people and avoid perpetuating the tragedy of said innocent people being left in the dust, unremedied in the face of shreds of inculpatory evidence.249 While it may, in fact, be less complicated for legislatures to publicly support a statute utilizing the higher clear and convincing evidence standard,250 that burden is unreasonable and nearly impossible to meet.251 As exonerees, whom the criminal legal system has already jettisoned, face off in adversarial battles against parties who do not believe in their innocence,252 an unnecessarily elevated burden of proof need not add to their troubles.
B. Compensation Provided
In terms of what is provided under the statute after the exoneree has proven their case, a holistic approach is needed to enact an altogether apropos compensation scheme, encompassing both sufficient monetary payments and personalized noneconomic services. First, the best financial compensation plan would stipulate a baseline remuneration per year of incarceration without any cap on compensation and then supplementally provide for actual, readily calculable expenses. This way, those who were unjustly imprisoned receive at least some amount of money, and then the aggregate reward individualizes the compensation experience, as it should, instead of basing compensation solely on how much time one spent in prison.253 Per the corrective justice theory of tort liability, a wrongdoer is morally obligated to make the injured party whole.254 Whole is not just measured by years spent in prison; when calculating damages, the combination of expenses they have incurred and will incur—including paying for DNA tests to prove their innocence, legal fees, in- and out-of-prison medical bills, and housing costs, among others255—should be taken into account.
Furthermore, the money should be distributed in equal portions over a defined number of years, as seen in Indiana’s compensation statute.256 An advantage of this payment plan is that it would help parse out compensation payments over time while avoiding potentially bankrupting state wrongful conviction appropriation funds.257 Though complete, immediate payment to the exoneree may grant instant gratification that the state’s comeuppance has come to fruition, a long-term payment can provide greater assurance that they and their exonerated peers will not be robbed of any owed compensation in the future. Additionally, this fixed period advances the exoneree’s interests by not dragging out the payments indefinitely.
Second, continuing in line with the corrective justice theory,258 every state should be obligated to institute programs and afford noneconomic services to help reassimilate exonerees back into society after the state wrongfully incarcerated them for years or decades.259 A multitude of problems accompanies being thrust back into society after years locked away—including a considerable gap in their resume, lack of technical skills, mental health issues, and potentially nonexistent home life—that could drastically impact exonerees’ post-release life.260 Not everyone will encounter the same problems upon release, so the presence of different aggravating circumstances in an exoneree’s life require tailored programs to address their unique needs.261
States should analyze the matters discussed in the Innocence Network’s exoneration checklist262 and integrate them into the support provided within their compensation statutes. They can offer, among other services, tuition assistance for college, vocational classes, job search assistance, housing assistance, mental-health assessment, and counseling services.263 These reintegration services are imperative to wrongfully convicted individuals’ proper reentry into society.264
Conclusion
Regardless of one’s background, anyone can end up facing a combination of the wrongful conviction causation factors and become a casualty of the criminal legal system.265 After being wrongfully imprisoned, innocent people work tirelessly to legally prove their innocence and clear their name.266 Despite what they have overcome, exonerees are continuously revictimized because of the catastrophes embedded within the criminal legal system and the government’s failure to give exonerees meaningful assistance.267 Whether with or without existing statutes, no state currently has an all-encompassing breadth of satisfactory compensatory accommodations or measures.268
Exonerees deserve just compensation for the collective thousands of years that have been taken from them, and it is in the hands of the states to enact reasonable statutes and provide corrective treatment to make up for the fact that innocent people were subjected to their unjust legal system.269 Reparations must be implemented to aid exonerees’ rightful reentry into society and assist them in returning some semblance of normalcy to their lives.