An empirical reexamination of state statutory compensation for the wrongly convicted.

• Author: Gutman, Jeffrey S.

1. INTRODUCTION

   An appropriate measure of a just society is how it treats those whom the government harms most severely. As frequent and well-publicized exonerations have been etched into the public consciousness over the last several years, a number of scholars have engaged in the study of compensation for such a group--those wrongly convicted. (1) The general tenor of the resulting articles is one of disappointment. (2)

   The notion of compensating the wrongly convicted is hardly new; it was pioneered by Professor Edwin Borchard over a century ago. (3) In 1913, Wisconsin became the first state to enact a no-fault wrongful conviction compensation statute. (4) There is a long-standing and near-universal understanding that, with respect to the wrongly convicted, "[e]xcept when an innocent defendant is executed, we hardly can conceive of a worse miscarriage of justice." (5) There can be little dispute that the government has a corresponding moral responsibility to provide appropriate remedies to those individuals. (6) Yet, 18 states still lack no-fault compensation laws, and most of the remarkably dissimilar existing state laws share two characteristics in tension with that moral duty.

   First, there is a hypervigilant worry of compensating those who are viewed as potentially undeserving. Many statutes, for instance, place on the claimant the formidable burden of showing by clear and convincing evidence that he or she is factually innocent (7) and/or require the claimant to demonstrate that he or she had engaged in no misconduct that caused his or her prosecution or conviction. (8) Second, and the issue addressed in this Article, most prescribe astonishingly modest awards and/or impose caps on monetary compensation that are far below those awarded by most juries and judges in recent federal civil rights cases arising from wrongful convictions and in cases brought under state compensation statutes without caps. (9) Such statutes largely ignore the nature, severity, and variation of injuries suffered while incarcerated; fail to account for post-release damages, such as ongoing psychological and medical harms; and overlook the pressing needs many exonerees have for social, vocational, medical, and educational services following what is often years of wrongful incarceration. In sum, most of these statutes reflect a begrudging rather than a restorative approach to remedying the harm done to the wrongly convicted.

   Despite all this, state compensation statutes are rightly viewed as the best of even less appealing alternative methods of redress for the wrongly convicted. (10) While federal civil rights and some common law tort suits can be extremely successful in particularly egregious cases in which government misconduct caused the wrongful conviction, such misconduct is not present in some cases and difficult to prove in others. (11) Private legislative bills to compensate the unjustly convicted require political muscle and fortitude, if the state permits such private bills at all, (12) and, therefore, promise to help very few of the wrongfully convicted. (13)

   To be sure, the decades since Professor Borchard's initial proposal have seen progress. The number of states with compensation statutes has increased steadily. Some of the more recent statutes, or amendments to older statutes, are more sensitive to evolving societal perceptions of the horrors of wrongful incarceration. Caps are being raised and more statutes offer elements of restorative reentry services that many exonerees need. But the balance between state fiscal concerns and just redress remains askew. This imbalance palpably harms a category of claimants to state compensation and support that are among those least deserving of parsimony and least equipped to surmount it.

   States, though, have reason to worry. Tort-based full compensation in these cases can be enormous. Fear of episodic, unplanned, and potentially large payouts in wrongful conviction cases leads to tough prerequisites to recovery and ungenerous prescribed awards and caps. (14) The uncertainty and worry of fiscal exposure that drives caps is real and understandable. As discussed further below, following several substantial judgments in favor of wrongly convicted individuals, Connecticut replaced its progressive uncapped statute with one that imposes damage caps. A proposal to do the same was made in the District of Columbia. (15) It is not enough, then, to view state compensation statutes only from the perspective of the claimants, deserving as they are for compensatory relief. We must consider the interests of the state as well.

   A reassessment of these statutes should begin by understanding that the exonerated have different characteristics and needs. Some of the wrongly convicted are exonerated and released from custody at the same time; others are exonerated well after release. The former are very likely to have immediate needs for financial, medical, and social service support, while the needs of the latter may be less pressing. For some, unjust imprisonment was relatively brief. For others, it spanned decades. Some experienced devastating injuries while incarcerated, such as assaults, solitary confinement, psychiatric harm, and contraction of infectious diseases like HIV and hepatitis C, while others managed to avoid these kinds of harms. Some lost opportunities to parent children born prior to incarceration and to care for aging parents; others did not. Some were educated and employed when convicted and thus clearly suffered lost wages, while others had different educational and employment profiles. Some may be eager, or at least willing, to devote the time, resources, and emotional energy to litigating such claims and exposing their harms - and potential government misconduct--to the public, while others may be reluctant to wage a second battle--often painful, expensive, and lengthy--against the government that wrongfully imprisoned them.

   Instead of accounting for the varying characteristics, needs, and inclinations of the exonerated, most state statutes mechanically set unyielding, but widely variant, per-year awards and damage caps. There is a better way. The approach I recommend here is based in large part on my empirical research, which has gathered compensation claims data for each of the 1900 persons listed in the National Registry of Exonerations as wrongly convicted in a state court since 1989. The results of that study are summarized, state by state, in Table 1. They show that a surprisingly small percentage of exonerees seek and obtain state compensation and that the average amounts paid per year of wrongful incarceration are disappointingly low.

   The reassessment of state compensation statutes presented here considers five elements: (1) the funding mechanism, (2) compensatory adequacy, (3) the provision of non-monetary social and other services, (4) claimant choice, and (5) an opportunity for expedited resolution. These design elements are drawn and adapted from two different federal approaches to remedying harms to large numbers of people--the National Vaccine Injury Compensation Program and the September 11th Victim Compensation Fund--regarded as among the more successful mass tort compensation schemes developed to substitute for, in whole or in part, traditional tort-based litigation. Together, a redesign involving certain elements of these programs can both relieve some state fiscal concerns and allow the exonerated to select a remedial approach that better suits his or her individual needs.

   Before venturing too far, I should reveal the source of my perspective. I represented four men in their claims for damages--Donald Gates, Kirk Odom, Santae Tribble, and Cleveland Wright--who were wrongfully convicted of serious crimes in the District of Columbia. (16) Each of these men spent over 20 years in prison for crimes they did not commit. (17) Donald Gates was in prison when DNA analysis exonerated him, after which he was immediately released. (18) Our remaining three clients, in contrast, spent long periods on post-release parole prior to exoneration. (19) For each client, my co-counsel and I sought damages under the uncapped D.C. Unjust Imprisonment Act ("D.C. Act"). (20) In Gates, Tribble, and Wright, we also filed federal civil rights claims, asserting that police misconduct caused the wrongful conviction. (21)

   The pain of failure does not warp my perspective. As explained further below, D.C. Superior Court judges awarded Kirk Odom $9,654,500 and Santae Tribble $13,236,527 in damages under the D.C. Act. (22) Following a federal jury trial in which two former D.C. homicide detectives were found liable for federal civil rights violations, the case brought by Donald Gates settled for $16,650,000--the largest single-person settlement in D.C. history. (23) Each of the cases, and the one brought by Cleveland Wright, has now settled. (24) These cases have taught me that litigation success is both possible and of enormous benefit to those who unquestionably deserve it, but it is also painful, protracted, and potentially fleeting.

   In Part II, I discuss the cases of Kirk Odom and Santae Tribble brought under the D.C. Act. Those recent cases offer insight into how two different judges approached the difficult remedial questions presented. They also demonstrate how dramatically most statutes undercompensate claimants. In Part III, I describe how I drew data provided by the National Registry of Exonerations, and many other sources, to document which exonerees filed state compensation claims and how those claims were decided. The resulting data show the percentages of exonerees who filed claims and were awarded compensation and the costs of such awards. In Part IV, I analyze aspects of existing state compensation statutes. In Part V, I explore the National Vaccine Injury Compensation Program and the September 11th victim Compensation Fund. In Part VI, I extract design...