An Oct. 4 article about how states compensate the wrongfully convicted incorrectly said that Michael Austin was freed by DNA evidence. Austin was exonerated of a murder charge after a Baltimore County Circuit Court judge found multiple problems with his trial, including prosecutorial misconduct and an ill-prepared defense attorney. (Published 11/18/04)
The scar across Michael Austin's right cheek, from an inmate's makeshift knife, is the most visible reminder of his 27 years in a Maryland maximum-security prison for a murder that DNA evidence now says he didn't commit.
The other scars are the memories. How inmates preyed on new arrivals, a practice he once likened to "watching lions chasing one of those gazelles." How he was unable to attend his mother's funeral after her death from cancer. How his freedom so overwhelmed him at first that a routine errand -- going to buy a tube of toothpaste -- caused him to weep.
When Austin asks himself what it would take to make him whole, he has no answer.
"If they gave me a billion dollars, a trillion, none of that would buy back one minute -- one second -- of the life I lost," he said.
As DNA testing frees increasing numbers of innocents from prison, Maryland and other states across the country are facing a politically sensitive and morally complex calculus: What is the value of a life unjustly spent behind bars?
Although Austin, freed in 2001, says no amount of money can restore his 27 years, he plans to ask the state for compensation nonetheless. Maryland has a law allowing for compensation of the exonerated -- it has awarded a total of nearly $1.5 million to four wrongfully convicted people -- but no specific guidelines for what constitutes a fair settlement. Elsewhere, jurisdictions that have compensation laws, including 15 states and the federal government, vary widely in their definitions of an appropriate payout.
Earlier this year, Virginia passed a law that compensates wrongly convicted people 90 percent of the state's annual per capita income -- or about $30,000 -- for up to 20 years. Alabama pays a minimum of $50,000 for every year of incarceration. New Jersey provides up to $20,000 per year, or twice the person's pre-prison salary, whichever is greater. Like Maryland, the District has a law that allows compensation but offers no specific guidelines.
The wrongfully convicted can sue states without compensation laws, but such cases are usually time-consuming and difficult to win, legal experts said. As for suing judges, juries, prosecutors and police who were involved in a wrongful conviction, a plaintiff would have to prove malicious misconduct, such as destroying or planting evidence or taking a bribe in return for a guilty verdict, said Michael Milleman, a law professor at the University of Maryland.
The other option is to get the state's legislature to pass an individual compensation bill. "But getting a private bill is a political process, and someone who deserves it might not get it," said Adele Bernhard, a law professor at Pace University who has studied compensation laws. "It depends on what senator you know."
When Virginia lawmakers took up the case of Marvin Lamont Anderson last year, they weren't sure what the state should pay.
He spent 15 years in prison before DNA evidence exonerated him of rape and sodomy charges in 2001. At the time of his arrest, he was 18 years old, with dreams of becoming a firefighter. He was sentenced to 210 years.
Other inmates "wanted to mess me up real bad," he said. "They'd threaten me, try to get me to initiate a fight, to start something to keep me from getting out. . . . You're always looking over your shoulder."
After hearing his story, some legislators thought that he should get as much as $1.5 million. Others said he merited a fraction of that. Finally, they arrived at a lump sum of $200,000 and about $2,000 a month for the rest of his life.
After Anderson's case, the Virginia legislature was accused of playing racial politics with the payouts. Anderson, who is black, and his family said that while the legislature dragged its feet on his case, it approved with little discussion $750,000 for a white man who had spent 11 years in prison -- four years less than Anderson.
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."
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.