Uneven Reparations for Wrongful Convictions: Examining the State Politics of Statutory Compensation Legislation
Owens, Michael Leo, Griffiths, Elizabeth, Albany Law Review
The whole matter of compensation for unjust convictions for felonies and lesser crimes is well worth further study, to the end that within measurable time remedial legislation may cure this defect in our social institutions. (1)
One of the fascinating findings from interviews with the wrongly convicted is that they harbor little or no anger--or more accurately, that "joy overrides the anger"--towards the State following their release from imprisonment. (2) At the same time, they imagine and wish for compensation for their wrongful convictions, especially when it resulted in their incarceration and particularly when they faced the death penalty. (3) Too often, however, recompense remains a mirage. In an age when state governments willingly spend tens and hundreds of millions of dollars to try to positively reintegrate the justly convicted back into society, the unjustly convicted must scrape, toil, and fight for arguably paltry portions of state dollars to positively reintegrate them. (4) As Alan Northrop put it after he served seventeen years in a Washington state prison for a rape he did not commit, "I got no apology, no nothing, no offer of any kind of financial aid." (5) He is not alone.
In the United States, financial compensation for wrongful convictions eludes many of its victims, including those exonerated of crimes. (6) The best empirical evidence of the difficulty the wrongly convicted face in accessing compensation comes from the Innocence Project and its national database of individuals exonerated through DNA testing. As of 2009, forty percent of them were awaiting compensation by their states. (7) Some of the wrongfully convicted reside in states where financial compensation is only possible (but unlikely) through civil litigation and private legislation. (8) Others live in states with statutes permitting compensation, but barriers to it may remain, resulting in few of the wrongly convicted receiving compensation. (9) A study by California Watch, for example, found that of the 132 claims submitted between 2000 and 2011 for compensation by persons determined to have been wrongly convicted by California, eleven claimants (approximately eight percent) received compensation from the state's Victim Compensation and Government Claims Board. (10)
Nonetheless, many states have chosen restorative policy designs for the wrongly convicted, including compensation statutes. (11) This is a cause for hope. For a long time, however, it seemed that states were unlikely to make much progress in compensating those whose lives had been irrevocably damaged by wrongful conviction and incarceration. Almost a decade ago, for instance, Adele Bernhard expressed the exasperation of reformers in light of limited success at spreading innovations in wrongful conviction compensation throughout the states:
I anticipated that the continuing parade of exonerations, in state after state across the country, would prompt local legislatures to enact new statutes benefiting the unjustly convicted and later exonerated in states that lacked such mechanisms and to modernize imperfect statutes in states where compensation statutes had not been revisited in years. I was wrong. (12)
Upon reflection, Professor Bernhard and others were not wrong; they were righteously and justly impatient. Even now, a decade later, many states have yet to enact such statutes. (13) Yet that truth need not foster hopelessness among reformers and those who would benefit from reforms.
Policy change is possible. In fact, "large scale change is not an anomaly. There is no iron law of equilibrium that restricts policy making to incremental changes once a policy is established." (14) While it is correct that "[f]ailure is the norm" for criminal justice policies, (15) and the speed of policy change in the United States can be glacial, the consensus among scholars of American politics and public policy is that policy change "is not gradual and incremental, but rather is disjoint[ed] and episodic," with "bursts of frenetic policy activity" disturbing "[l]ong periods of stability. …