BUDGETING FOR EXONEREE COMPENSATION: INDEMNIFYING EXONEREES NOT OFFICIALS TO DETER FUTURE WRONGFUL CONVICTIONS.

• Author: Philbrick, Mackenzie

Introduction: The Chicago Police Torture Scandal 799 I. Barriers to Compensation: Re-Punishing Survivors of State Harm 805 A. A Carceral State: False Confessions and Wrongful Convictions 805 1. Miranda Fails to Prevent False Confessions 810 2. Coerced Confessions Follow Coercive Interrogations 813 B. Cascade Effects of False Confessions: False Pleas 818 C. Current Methods of Exoneree Compensation 823 II. The Problem of "Adequate" Exoneree Compensation 826 A. Statutory Compensation Schemes Inadequately Restore Exonerees 826 1. Awarding "the Deserving" and Contributory Provisions 827 2. Current Compensation Schemes Structurally Reinforce Racism 831 B. Exoneree Compensation Does Not Deter Future Official Misconduct 834 1. Institutional Actors 834 2. Official Immunity from Suit 840 III. Budgeting for Exoneree Compensation 843 A. Meaningfully Increase the Availability and Amount of Compensation 844 1. Legislative Amendments to Increase Compensation 845 2. Rethinking Adversarial Compensation: Wrongful Conviction Funds 848 B. Indemnifying Exonerees, Not Officials 851 1. Law Enforcement Agencies Should Not Receive Bailouts to Cover Litigation Costs 852 2. Tie Wrongful Conviction Funds to Law Enforcement Agency Budgets 853 C. Prosecutorial Reform 855 1. Lobby Against Mandatory Minimums and Eliminate Over-Charging 858 2. Allocate Resources to Conviction Integrity Units 860 Conclusion 866 INTRODUCTION: THE CHICAGO POLICE TORTURE SCANDAL

In 1993, Wayne Washington was brought into the police station in connection with the shooting and murder of Marshall Morgan Jr.--a standout basketball player for the Illinois Institute of Technology--after Tyrone Hood told the police he was with Washington at the time of the crime. (1) Washington was left alone and handcuffed to a chair for hours before Detectives John Halloran and Kenneth Boudreau beat him, repeatedly kicked his chair over, and demanded he confess to committing the homicide of Morgan Jr. with Hood. (2) Over two days of violent interrogation, Washington maintained his innocence. (3) Ultimately, detectives prepared a statement implicating Washington and Hood in the homicide and promised Washington could go home upon signing the confession. (4) Desperately wanting to escape the detectives who had beaten him and unable to endure further physical and psychological abuse, Washington signed the false statement drafted by the police. (5)

Washington was indicted, pled not guilty, and then tried prior to Hood. (6) With little evidence at trial, the government presented the two sets of statements that were violently coerced by Chicago police officers. (7) The first was Washington's false statement, indicating that he planned a robbery with Hood and received a gun from a man named Jody Rogers. (8) Second were statements made by brothers Michael and Jody Rogers, who testified that they witnessed Hood say he was going to commit a robbery, that they supplied Hood a gun the day of the murder, and that Hood subsequently told them he murdered Mr. Morgan. (9) The Rogers brothers later recanted their testimony, stating it was the product of physical abuse and threats by police. (10) The jury at Washington's trial was not able to reach a verdict and the court declared a mistrial. (11)

Before Washington's retrial, the prosecution offered him a plea deal to a 25-year sentence. (12) After seeing Hood, a man who maintained his innocence, receive a 75-year sentence, Washington decided to plead guilty. (13) However, during his incarceration, Washington resolutely maintained his innocence and filed numerous petitions for post-conviction relief, each denied by the courts. (14) Hood similarly filed petitions for post-conviction relief, one of which resulted in the governor granting his petition for clemency and commuting his sentence. (15) Subsequently, new evidence revealed the true perpetrator of the murder--the victim's own father--and the State moved to vacate Washington and Hood's convictions and grant them new trials. (16) The court granted the motion, and the State then dismissed the charges against them. (17)

Soon after, Washington and Hood filed petitions for certificates of innocence without any opposition from the State. (18) In support of his petition, Hood submitted evidence that two key witnesses had recanted their coerced testimony and the victim's father had killed his son to collect on a life insurance policy. (19) However, the statute governing certificates of innocence in Illinois has a limitation, commonly seen in other states as well, that resulted in the circuit court granting Hood's petition but denying Washington's. (20) In Illinois, a certificate of innocence can be denied if the defendant contributed to his conviction. (21) Because Washington had given a false confession and pleaded guilty, the court concluded that Washington voluntarily contributed to his conviction, and thus was not entitled to a certificate of innocence pursuant to chapter 735 section 5/2-702 of Illinois state law. (22) This decision was affirmed by the appellate court. (23)

Mr. Washington is just one of the many survivors of Chicago police's systematic use of torture from the 1970s through the 1990s, which included tactics such as electric shocks, beatings, cigarette burnings, suffocation, sexual assault, kicking, screaming, and threats with assault weapons. (24) The torture was mostly led by Jon Burge and included at least 118 Black and Latinx victims. (25) As of 2019, at least 65 known torture survivors remained incarcerated due to the confessions elicited from the racialized torture Burge's crew inflicted. (26) Some spent years or decades in prison like Washington, some were put on death row, and others died behind bars. (27)

False confessions are a contributing factor in almost 30% of convictions later overturned by DNA evidence, and they are one of the leading causes of wrongful conviction. (28) In Chicago, false confessions are particularly prevalent. Cook County police account for an estimated 25% of all known false confessions nationwide. (29) Notably, the available data only represent "the tip of an iceberg," as there are circumstances in which false confessions are neither trackable nor discoverable, including confessions disproved before trial, confessions in juvenile proceedings protected by confidentiality provisions, or confessions given for minor crimes not subject to post-conviction scrutiny. (30)

Concerned in particular about the false confessions arising from the Cook County interrogations, on May 6, 2015, Chicago passed the nation's first reparations ordinance for survivors of Burge's torture ring. (31) The ordinance provides five radically transformative elements: (1) the creation of a $5.5 million reparations fund to provide up to $100,000 to torture survivors; (2) "free access to the city's colleges for survivors and family members"; (3) "the creation of a public memorial"; (4) "mandatory teaching of the police department's torture ring to eighth graders and high school sophomores in Chicago public schools"; and (5) "the creation of a center on the Southside dedicated to addressing the psychological effects of torture." (32)

The legacy of false confessions has cost Chicago taxpayers millions because the city, not police departments or police officers, bears the cost of police misconduct. (33) As of January 2022, Chicago taxpayers have paid $130 million in lawsuit settlements and judgments related to Burge's misconduct. (34) While this is a large expense for taxpayers, the cost constitutes a sliver of municipal and state police and corrections budgets. In fact, the Chicago Police Department budget was almost $1.8 billion in 2020 alone. (35) Since there is no financial incentive to investigate officers who violate the law and those officers are never personally financially liable for such behavior, structures of government funding only serve to perpetuate official misconduct. (36) Nearly all cities have comparable mechanisms of officer indemnification and these persistent police practices are not unique to Chicago. (37) Instead, Chicago is "ordinary in its dysfunction." (38)

As demonstrated by Washington's case, false confessions and pleas have serious consequences for an exoneree's ability to obtain damages from the state. Namely, Iowa, (39) New Jersey, (40) Oklahoma, (41) and Ohio (42) preclude those who pled guilty from receiving compensation, even if that plea was coerced, while courts may interpret contributory provisions as barring those who falsely confessed. (41) By denying exoneree compensation to those who gave a false admission but are factually innocent, both the legislature and judiciary preclude any meaningful justice and fail exonerees, who often have access to fewer resources and support programs than if they had committed a crime. (44) Furthermore, lawmakers squander an opportunity to realign police incentives and reform police behavior by increasing accountability, thus reducing the chances of future official abuses, false confessions, and by extension, wrongful convictions.

Part I of this Note provides a background of false confessions, why they occur in the context of police interrogation, and their consequences for an exoneree seeking compensation from the state for their wrongful incarceration. (45) Part II investigates avenues of legal redress for the wrongly incarcerated and explores whether meaningful compensation may reform the underlying procedures which led to the false confession. (46) Part III argues for legislative amendments to meaningfully increase the availability and amount of exoneree compensation. (47) This part also proposes the adoption of budgetary arrangements in which law enforcement agencies bear the burden of settlements and judgments against them--thus facing financial constraints when litigation is costly--coupled with prosecutorial reform to root out causes of wrongful convictions. (48) In addition, it proposes state...