Marisa Kanof, MPP, Executive Editor, Brief Policy Perspectives

The United States has one of the largest prison populations in the world. Statistics for 2014 show that about 2.2 million adults are incarcerated in federal and state prisons and local jails.  However, an estimated 2.3 percent to 5 percent of those incarcerated are believed to be innocent.  People are wrongfully convicted for a variety of reasons, including eyewitness misidentification, botched forensics, prosecutorial and police misconduct, and false confessions.  Other times innocent people find themselves wrongly behind bars due to a broken plea system.  However, the fact that innocent people end up behind bars is just one problem – what happens when they get out is another.

Life After Exoneration

Despite advances in DNA technology, as well as non-DNA related factors (false confession recantations, new trials due to ineffectual counsel, etc.), exonerations are still relatively rare: Since 1989 there have only been 1,761 exonerations in the United States.  It takes, on average, between 9 and 19 years for an individual to be exonerated, although it is not uncommon for the process to take much longer, especially for older convictions that occurred before advances in DNA technology.

After exoneration, life is often difficult for those who are freed after decades behind bars.  Many exonerees have physical scars from the abuse suffered in prison, and psychological scars from having been locked up for crimes they didn’t commit.  As most people are convicted when they are young (the average age of an exoneree at the time of conviction is 26 years old, although the Innocence Project reports that one third of exonerees were arrested between the ages of 14 and 22), they often missed out on a crucial time to build job skills, daily living skills, and social relationships, as well as pursue educational opportunities.  It’s not uncommon for exonerees to be released from prison and have no idea how to use a computer, the internet, or a smartphone, thus severely inhibiting their ability to function in today’s job market.  Additionally, many states are slow to remove an exoneree’s conviction from his or her record, further hindering their ability to secure gainful employment.   

Exoneree compensation

Laws to compensate exonerees exist at the federal level, as well as in 30 states and the District of Columbia. However, the compensation an exoneree is eligible for varies wildly.  For example, Texas has a relatively generous compensation statute, making exonerees eligible to receive $80,000 for every year spent in prison, as well as tuition and fees for up to 120 credit hours at a public college or university.  Conversely, a state like Montana only provides for tuition, room, and board at a state college or university, and exonerees are only eligible if their convictions were overturned due to post-conviction DNA testing.

Even in states that do provide exoneree compensation laws, an exoneree is hardly guaranteed a settlement.  Compensation statutes are rife with short time limits to file claims and requirements that place a burden of proof on the exonerees to prove that they did not commit the crime they were convicted of.  Furthermore, most statues bar exonerees from being eligible for compensation if they in any way caused their convictions, meaning an exoneree who falsely confessed or plead guilty to a crime he or she didn’t commit (often times to avoid a capital sentence) is not eligible to collect anything from the state.

Ways to Fix the System

Reform takes time, and there are few silver bullets, but there are things that can be done to help exonerees get their lives back after they have been released.  At a minimum all jurisdictions should pass compensation statutes, but those statutes should make a good faith attempt to make the exoneree whole.  Furthermore, those statutes should address the unique challenges exonerees face.  The Innocence Project offers a model compensation statute that provides a good foundation for legislators to get started, the key points of which are summarized below.

1. The pool of exonerees eligible for compensation is expanded to include anyone who has been pardoned, had their conviction reversed or vacated, or was found “not guilty” at a new trial.  Additionally, those who falsely confess or plead guilty to crimes they did not commit are eligible to receive compensation as long as they didn’t fabricate evidence or commit perjury.  

2. Exonerees are entitled to reasonable and fair compensation at an amount of $62,500 for each year spent behind bars, not including an amount for legal fees, tuition, and other educational costs.  They posit that the award shouldn’t be subject to caps or taxes, and that it should be indexed for inflation.  Additionally, exonerees are entitled to be reimbursed for immediate expenses they incur after being released (housing, transportation, healthcare, etc.), before they receive a compensation award.

3. As determined by a state’s department of social services, exonerees are eligible for up to three years worth of immediate services, including “Section 8 Housing Voucher Program; secondary or higher education; vocational training; transportation; subsistence monetary assistance; assistance in obtaining government identification documentation; re-integrative services, and mental, physical and dental health care.”

4. The statute says that exonerees are entitled to lifetime physical and mental healthcare through a state’s employee healthcare system (although this amount is offset by any healthcare an exoneree receives through his or her employer).

5. The time limit for exonerees to file a claim is three years, and the state has to make a reasonable effort to notify exonerees that they are entitled to compensation from the state.

6. Without providing specific language, the model statute notes that legislators should include a section in the bill that would expunge a conviction from an exoneree’s record, or a provision that would seal the conviction.

Sending an innocent person to jail is an egregious miscarriage of justice.  That injustice shouldn’t be furthered by ineffective systems that make it difficult for exonerees to reclaim their lives.  It may not be possible for an exoneree to truly regain what he or she loses at the hands of a wrongful conviction, but legislators and policy makers should at least try.  Fair and robust compensation statutes are a good place for them to start.