The Washington PostDemocracy Dies in Darkness

We need to fix how we compensate the wrongly convicted

Awful news, via the NY Post:

Jailed more than two decades for a crime he did not commit, William Lopez’s brief taste of freedom came to a sudden, tragic end Saturday when the man died just days before his $124 million lawsuit for false imprisonment was set to start.
The 55-year-old Bronx man had finally been freed in January 2013, after 23 years behind bars for murder, but a massive asthma attack ended Lopez’s short post-prison life at about 1 a.m. Saturday, his lawyer told The Post.
Supporters said his unexpected demise denied him the justice he deserved.
“He was always looking forward to being compensated,” said his friend and criminal lawyer Jeffrey Deskovic. “His life was really robbed from him.”
Lopez had hoped whatever money he got from the suit would help him enjoy a few of the comforts he was denied in prison.
“He wanted to do some domestic travel to other states, and to travel internationally,” Deskovic said. “He wanted to go to college and to go to law school. He wanted to set his wife up in business, and he wanted to be an entrepreneur.”
“It feels great to be back on Earth,’’ Lopez said after his release. “I’m looking forward to restoring my life as best as I can.’’

Read more about Lopez in this New York Times profile from February.

At the moment, 20 states still have no law at all to compensate the wrongly convicted. That seems flat-out callous. Over the last 25 years, DNA testing has made it overwhelmingly clear that our criminal justice system is quite capable of convicting the wrong person. And whatever flaws in the system produced those wrongful convictions are almost certainly also affecting the far larger number of cases for which DNA isn’t a factor.

But even the states that do compensate the innocent often include stipulations that can make it difficult for victims to collect, such as prohibiting payouts to anyone who failed to contest their conviction, or who falsely confessed to police. This is particularly pernicious when you consider that prosecutors often push for harsher sentences against suspects who maintain their innocence, or offer more lenient sentences to those who plead guilty. Most states also require a full exoneration before a victim can be compensated. That usually means anything short of a DNA test won’t make the cut. Sometimes when exculpatory evidence is discovered after conviction, a prosecutor will make an offer to the defendant to plead guilty to a lesser charge in exchange for a lighter sentence that will enable the defendant to be released. Turning the deal down could mean more months or years in prison fighting the conviction. But accepting it would generally make the defendant ineligible for compensation.

Most states that offer compensation offer a set amount of money for each year of incarceration — the Innocence Project recommends $50,000 per year. But once the victim dies, the checks stop coming. You can’t pass the compensation on to your family.  That seems patently unfair, for a few reasons. First, it assumes that the only victim of a wrongful conviction is the person who is sent off to prison. But the families of innocent people convicted of horrible crimes certainly suffer, too. Spouses lose companionship. Children lose parents. Parents are robbed of seeing their son or daughter realize their full potential.

Second, for those wrongly convicted people who do have children, each year in prison is a year they could have been providing for their kids, and for their kids’ future. If the state wrongly takes 20 of your prime earning years, it doesn’t seem like too much to ask that the state give you the peace of mind of knowing that your children will be financially secure after you die.

Third, it gets the state off the hook. Compensation schemes are meant to be restorative not punitive, but if the government wrongly incarcerated a man for decades, it hardly feels like justice for the government to benefit financially from the fact that the victim just happened to die before collecting his first check.

Finally, for a real-world example of how this payout system falls well short of justice, consider the Tennessee case of Paul House, who served 22 years in prison before his conviction was overturned and he was released in 2008. While he was in prison, House developed multiple sclerosis. House’s doctors believe the state prison system was late diagnosing him, then under-treated him once he had been diagnosed. While in prison, House wasted away. He left prison a ghoulish, wheelchair-bound residuum of his former self. But because House wasn’t exonerated by DNA evidence, he is ineligible to take advantage of Tennessee’s law to compensate the wrongly convicted. His best hope now lies with Tennessee Gov. Bill Haslam, making House’s compensation more of a political question than a legal one. What’s more, even if he is eventually compensated, the state gets to stop paying once House dies. Which means every year that prosecutors fought House’s release in spite of growing evidence of his innocence, every year that the state kept in prison and under-treated his disease, and every year that Tennessee governors fail to act in his case is one less year Tennessee has to send checks to Paul House.

On top of all of that, unless he is granted some sort of exemption, it could end up making more financial sense for House to refuse compensation even if it’s offered to him. House’s extensive medical bills are currently covered under Tennessee Medicare. But if he is exonerated and eligible for compensation, the new income could make him ineligible for Medicare. For someone in House’s condition, that could end up being a net loss.

Of course, not all wrongly convicted people have House’s medical problems. But it remains true that so long as the compensation checks stop once the victim dies, the state benefits financially by delaying an official exoneration for as long as possible.