The National Registry of Exonerations (NRE) will soon publish the second part of a study it commissioned of its database of all known false convictions in the United States since 1989. The NRE was kind enough to send me an advance copy. Among the highlights:
- The 2,265 exonerees in the NRE database served a combined 20,080 years behind bars. That’s an enormous amount of wasted human potential.
- In an accompanying and forthcoming law review article, George Washington University law professor Jeffrey Gutman looked at compensation for the wrongly convicted. Between lawsuits and state statutes that award fixed compensation for wrongful convictions, state and municipal governments have paid out $2.2 billion to exonerees. That’s about what Americans spend every year to fight indigestion. Of course, this is nowhere near the total cost of wrongful convictions. To calculate that, you’d need to look at how much it costs to investigate, convict and imprison the wrong person; the effects the wrongful conviction had on that person, his or her family, and his or her community; and any crimes the real culprit committed after authorities apprehended the wrong suspect.
- More than half the exonerees in the database have never been compensated.
- In states that have statutes that dictate the sum to be paid to the wrongly convicted, exonerees on average receive $69,000 per year in prison. Those who sue do better: They average more than $300,000 per year. But lawsuits are also much less predictable.
- Among the states that do have compensation statutes, Gutman ranks Mississippi as the most generous, though in order to receive payment, exonerees there must also forgo their right to sue the state for civil damages. But blue states on average pay out about 50 percent more to exonerees than red states.
- As is often the case with the criminal-justice system, race is a factor. Black people are more likely to be wrongly convicted — they make up 12 percent of the population but 46 percent of exonerees, and collectively represent 56 percent of the life years lost to prison. Black exonerees also spend more time in prison before they’re cleared and released (10.7 years vs. 7.4 years for white people) and receive less compensation when they get out (on average, $42,000 less per year of incarceration).
- Perhaps counterintuitively, exonerees who falsely confessed had both a higher rate of victory when suing for damages and collected more money when they won. Many of the states with compensation statutes refuse to pay exonerees who falsely confess, on the justification that they contributed to their own conviction. If it’s true that juries are more likely to rule against the state and award more money once they hear about how such confessions are obtained, perhaps such hard-and-fast rules are wrongheaded.
It’s impossible to know just how many people are wrongly convicted. Given that different states go about documenting these cases in vastly different ways, it’s also difficult just to tally everyone who has been exonerated. As the NRE concedes in its report, “There are many exonerations from past years that we don’t know about — we keep finding them when we have time to look — and the vast majority of false convictions are never recognized at all.”
It’s also worth pointing out that while the $2.2 billion paid out was certainly important to the people who received it, that figure isn’t likely to deter future wrongful convictions. The money almost always comes from public treasuries or at least from municipal insurers, not from the public officials responsible. For real deterrence, we’d need consistent accountability for police and prosecutors whose misconduct sends innocent people to prison. Police are protected by qualified immunity. Prosecutors are shielded by absolute immunity, even in cases where they have been shown to have committed egregious misconduct, such as manufacturing evidence.
In some states, such as Tennessee, the final say over whether someone has been completely exonerated lies with the governor, which effectively politicizes the decision. Some states (again, such as Tennessee) also don’t make compensation for wrongful convictions heritable. Once the wrongly convicted person dies, the checks stop coming. This is wrongheaded for many reasons, but here are two important ones: First, every year the state denies or delays recognizing an exoneration is a year the state doesn’t have to pay out compensation. And second, the law presumes that the families and children of exonerees aren’t harmed by the wrongful conviction.
In the end, all we can really say is that while $2.2 billion is a lot of public money, it’s a sum that’s inequitably distributed, unlikely to bring much change and should be quite a bit larger.