Opinion writer

From the Richmond Times-Dispatch:

A bill aimed at helping innocent people wrongfully convicted by flawed forensic science was killed by a unanimous vote in the House Appropriations Public Safety subcommittee because of concerns about its cost.

The legislation would have allowed people who claim innocence to petition the Virginia Court of Appeals, arguing that developments in forensic science now clear them, or that they were convicted largely by a forensic science technique or testimony that has since been discredited. . . . 

The bill was opposed both years by the Virginia Association of Commonwealth’s Attorneys. This year, the department of Planning and Budget reported that if the bill became law, the Virginia attorney general’s office would require additional staff at a cost of $439,078 as well as funding to hire independent experts to respond to forensic science challenges in court.

As we have previously discussed here, it can be extraordinarily difficult for people convicted because of bad forensics to appeal their convictions. First, the courts are loath to admit their mistakes, so it’s hard to even get an appeals court to concede that a field of forensics or a specific practitioner that it has already approved has since been discredited. Second, both state and federal courts have imposed deadlines on people who find new, potentially exculpatory evidence. Generally, you must file your petition within a year of the time the evidence could have reasonably been discovered. Since the discrediting of forensics fields or specific actors tends to be a gradual process, those convicted are often trapped: If you file before the court agrees that a consensus has been reached that you were convicted with junk science, you’ll not only lose; you’ll also be prevented from making the same claim later once a clear consensus has been reached. But if you wait too long, you risk missing your one-year window to file.

That’s where bills like the proposed law in Virginia can provide some relief. They give defendants a new path to a new trail via a “junk science writ.” Texas was the first state to pass a law like this, after the execution of Cameron Todd Willingham — who was likely innocent — made national headlines. The idea is to give the convicted the opportunity to shortcut the procedural barriers if they can show they were convicted with faulty forensic evidence.

The Innocence Project estimates that faulty forensic science plays a role in about a quarter of wrongful convictions. The National Registry of Exonerations lists 51 Virginians who have been exonerated since 1989. Ten were convicted at least in part because of faulty or fraudulent forensic evidence. A half-million dollars seems like a pretty paltry amount to make sure there aren’t more.

But let’s take a closer look at that half-million dollars. First, note that this estimate isn’t the estimated cost of enforcing the law. It’s an estimate of what it would cost to fight incarcerated people the new law would allow to file claims. Certainly some people would make fraudulent claims. But some would be legitimate, and there’s no requirement that the state fight every claim. In some cases, it may well be in the interest of justice to concede that someone was convicted with junk science, and either allow them to be released or agree that they deserve a new trial.

But even taking the estimate at face value, let’s get some perspective on just how much money we’re talking about. Virginia’s 2018 state budget was $51.8 billion. If we round up the Virginia AG’s estimate to $500,000, we’re looking at just .00097 percent of the state’s annual budget. In fact, last year Virginia saw a $2.2 billion surplus. The $500,000 would represent just .0227 percent of the surplus. It would amount to .05 percent of the $1 billion the state spends on prisons and 2 percent of what it spends on jails. It would be just 3.2 percent of the state’s rainy-day fund.

Relatively speaking, then, the bill itself isn’t expensive at all. But it could get much more expensive than $500,000 per year. Yet ironically, if this law did end up costing Virginia a lot of money, it would be because over the years, the state’s legislators have refused to spend the money to ensure that people accused of crimes get an adequate crack at justice. For example, when Virginia hires outside lawyers to advocate on behalf of the state, it pays them $400, $500, sometimes as much as $700 per hour. But when it hires attorneys to represent indigent defendants, it pays $90 per hour, with a cap of $1,235 per felony. That’s one of the lowest caps in the country. A 2004 American Bar Association report concluded that the public-defender system was “deeply flawed and fails to provide indigent defendants the guarantees of effective assistance of counsel required by federal and state law.” Likewise, a 2003 Public Defender Commission report found the state’s system lacking on all 10 criteria evaluated.

Virginia has also had some of the most aggressive prosecutors in the country. It trails only Texas in number of executions since 1976, and Prince William County in particular is among the killingest counties in the country. In 2012, an Urban Institute study looked at a sample of cases in Virginia from 1973 through 1987 for which biological evidence had been preserved. Incredibly, the study found that in 5 percent of the murder and sexual assault cases examined, DNA testing showed that the state had convicted the wrong person.

The state also has a less-than-stellar law for compensating people once they’ve been exonerated. Virginia gives exonorees 90 percent of the state’s per capita income for each year they were incarcerated. That comes to about $40,000 per year. But the law requires the legislature to appropriate funds for each exonoree, and it tends to do so only if the wrongly convicted person agrees not to sue. Compensation can also get tied up for years due to circumstances unrelated to a particular exonoree’s case, such as a budget impasse. The payout is also capped at 25 years, and exonorees can’t use it to secure a mortgage or other loan. Consequently, some exonorees have passed on seeking compensation and sought a settlement through litigation, or by threatening it. In one of the more notorious cases to ever come out of Virginia, for example, the state and the city of Norfolk recently agreed to a combined $8.4 million payout to four Navy sailors wrongly convicted of a rape and murder in 1997.

A half-million dollars is a drop in the bucket. But if you start piling up the multimillion-dollar settlements, you start to put a bigger dent in the commonwealth’s coffers. I suspect this is what the delegates on that subcommittee were really worried about. The Old Dominion has a reputation for punitiveness. It has long underfunded its public-defender system. And there’s good reason to believe that a lot more innocent people are wasting away in Virginia’s prisons. If a new law gives a significant percentage of those people a path to exoneration, the commonwealth could be looking at tens, perhaps hundreds of millions of dollars in payouts.

That’s obviously a morally reprehensible reason to vote against this law. No self-respecting politician would openly declare that we should keep innocent people in prison to avoid paying them compensation. But voting down this law almost certainly means that innocent people who might otherwise have been freed will now remain behind bars. An honest politician willing to admit that much is at least stating that the state can’t afford the tens or hundreds of millions-dollar price tag that would come with awareness of those false convictions. For the delegates who voted against this bill, the price of a conscience was quite a bit cheaper. They were willing to remain in the dark for $439,078.

Read more:

Radley Balko: How the courts trap people who were convicted by bad forensics

Samuel R. Gross: The staggering number of wrongful convictions in America

Will Baude: The unintended consequences of compensating the exonerated

Harry T. Edwards and Jennifer L. Mnookin: A wake-up call on the junk science infesting our courtrooms

Radley Balko: Judges are terrible at distinguishing good science from bad. It’s time we stopped asking them to do it.