INMATES WHOSE wrongful convictions are reversed in Alabama on the grounds that they are innocent are lucky in more ways than one. In addition to regaining their freedom, state law requires that they be awarded at least $50,000 for each year of their incarceration. But pity those whose wrongful convictions are dismissed on the basis of innocence in Texas. Before they can collect a dime from the state, they will need the endorsement of the very same district attorney's office that prosecuted them in the first place. Advocates for the wrongfully convicted, who only recently noticed that this provision had been slipped into the law, doubt that Lone Star prosecutors will be eager to publicize their errors.
The increasingly widespread use of DNA tests in criminal cases has uncovered an expanding pool of people who suffer most when justice fails -- the unjustly convicted -- and has focused attention on the laws that determine how to indemnify them. According to the Innocence Project at Benjamin N. Cardozo School of Law in New York, 151 former convicts have been exonerated by genetic testing in the past 15 years. The publicity generated by their groundless convictions has prompted some states to become more aggressive in running DNA tests to reexamine old criminal cases. In Virginia, Gov. Mark R. Warner two weeks ago announced a virtually unprecedented decision to test evidence in several dozen old cases to determine whether new technology could overturn more prisoners' convictions. The governor's order -- laudable but limited in scope -- may lead to more embarrassing exonerations in a state that has already produced 13 of them, more than any state but Illinois and New York (and tied with Texas). Ultimately, though, it should also strengthen confidence in the integrity of Virginia's criminal justice system.
The growing willingness of some states to confront and correct old errors should put a spotlight, first, on how to avoid such errors in the future. But it also highlights the inconsistencies and inadequacies in compensating former prisoners who were unjustly convicted. Some states demand a governor's pardon before they will consider monetary awards for former prisoners; others require only that a conviction be vacated or old charges dismissed. Some bar awards to anyone who originally pleaded guilty -- even if coerced to do so -- but was later exonerated. Tennessee sets a maximum award for the wrongfully imprisoned of $1 million; in New Hampshire, the maximum is $20,000. Federal law, although it is rarely relevant in such cases, allows for a lump-sum payment of just $5,000. Only 18 states, plus the District, have any kind of law setting guidelines for compensating the unjustly convicted.
At the very least, other states should tackle the question of how to indemnify a person who has lost years of his life behind bars. The underlying issues are loaded: How much, and under what circumstances, should a state pay to right these old wrongs? But by failing even to try to answer those questions, the government compounds an already profound injustice.