This year, the state passed a law designed to bring uniformity to the payouts, basing them on the state's annual per capita income. It will also provide up to $10,000 in community college tuition reimbursement.
Del. Robert Tata (R-Virginia Beach) said the legislature wanted to remove politics and emotion from the process. "Everybody will be treated the same," he said. "We don't want to be making this up as we go along."
Virginia lawmakers debated how much to give Marvin Lamont Anderson, who unjustly spent 15 years in prison.
(Michael Williamson -- The Washington Post)
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But even that formula has critics. Bernhard said states that use median income as a standard are not only "chintzy" but insulting.
"Essentially, they're saying, 'We don't think you would have made more than the median income,' " she said.
So, then, what is fair compensation?
"What's a prison rape worth?" asked Ronald Kuby, a New York lawyer who has worked on compensation cases. "What's missing your child's first day of school worth? Not being with your parents as they lay dying? Having your parents go to their graves with you branded a convict?"
As complicated and imperfect as it is, deciding what a person's life is worth is done repeatedly. Juries routinely award damages in wrongful-death cases. They even calculate the value of limbs lost in accidents. After the Sept. 11, 2001, terrorist attacks, the federal government set up a fund to pay the victims' families. Using a formula that accounted for a person's age and earning potential, it paid a median amount of almost $1.7 million to nearly 3,000 families.
Mindful of how arbitrary payouts can be in New York, where judges oversee the cases, Kuby ordered a detailed economic analysis of the earning potential of two clients, Charles Shepard and Anthony Faison, who had spent 14 years in prison for a murder they did not commit.
The analysis included their employment history and skills. For Shepard, a construction worker, it noted that he was adept at "sawing lumber . . . mounting pipe hangers and cutting and insulating material." It even included his high school grades. The report concluded that had he not been convicted, he would have been able to earn an annual salary of $49,170.
It's calculating the intangibles -- the pain and suffering, the lost time -- that can be much more difficult to put a dollar figure on, Kuby said.
His clients had "serious problems and serious trauma that grew out of their incarceration," according to psychiatric evaluations Kuby commissioned. Shepard's report noted that he was arrested just before his daughter was born. After he was freed, "she doesn't really think of him as her father, and she only calls him when she needs something," it said.
Shepard was also attacked by three prisoners, who stabbed him with ice picks, the report said. It noted that he wakes up in the middle of the night "all sweaty" from nightmares about prison, including one about the time he saw an inmate get stabbed in the heart.
In 2002, Shepard and Faison won a $3.3 million settlement, the largest payment under the state's wrongful-conviction statute.
It's not clear how much Austin will get. His attorney, Larry Nathans, would not discuss what his client would seek. In Maryland, compensation requests go to the Board of Public Works, which is made up of the governor, the comptroller and the treasurer. In the past, it has awarded the wrongfully convicted about $90 for every day spent in prison. If it uses that formula when considering Austin, he could get close to $1 million.
Gov. Robert L. Ehrlich Jr. (R) pardoned Austin last year and said then that the board would look into compensating him. But he acknowledged that it could be a difficult task.
"What's a year worth? What's six months worth?" the governor asked. "It's very hard to quantify that."
Staff researcher Bobbye Pratt contributed to this report.
