Compensation statutes and post-exoneration offending.

• Author: Mandery, Evan J.

Utilizing a data set of exonerees compiled from the Center on Wrongful Convictions at Northwestern University, this study tracks the behavior of 118 exonerees following their releases and examines the effects of more than twenty variables on the exonerees'post-release criminality. We present here our .findings on the effect of victim-compensation statutes on post-exoneration offending. When treated as a dichotomous variable, compensation has no apparent effect. When treated as a continuous variable, however, a pattern emerges. Exonerees who are compensated above a threshold amount of $500,000 commit offenses at a significantly lower rate than those who are either not compensated or compensated beneath the threshold. Prior critiques have called for more and better compensation statutes on grounds of fairness. Needless to say, the fairness argument is substantial. This research suggests that the public policy argument for compensation is compelling, too, and has the potential to transform a stagnated debate.

1. INTRODUCTION

   As the problem of wrongful convictions has come into focus in recent years, increasing attention has been paid to government failures to compensate adequately these victims of the criminal justice system. Only twenty-seven states and the District of Columbia have compensation statutes in place. (1) Most of these states impose substantial barriers to recovery. Furthermore, where compensation is paid, it is often trivial. The academic community has widely condemned this state of affairs. (2) Most of these critiques have called for more and better compensation statutes on grounds of fairness. (3) Needless to say, the fairness argument is substantial. Our focus, however, is on the heretofore unexamined utility of wrongful conviction statutes. Are they useful as a crime-prevention tool? This question has not been investigated previously. This oversight is almost certainly attributable to the practical problems of studying this population. The universe of people who have been convicted and later absolved of a crime is small, and those who receive compensation comprise a small subset of that group. Logistical challenges notwithstanding, the question begs for research. Research on prison releasees suggests that exonerees are potentially at high risk for offending following their releases. Though they are innocent of the charges for which they were incarcerated, there is no reason to think that they are immune from the detrimental effect that prison has on prisoners. It is well established that prison can habituate criminal behavior. (4) Furthermore, exonerees, like all prison releasees, face daunting challenges reentering society. People exiting prison need, but often do not have, physical and mental health care, education, food, housing, jobs, and a support network. (5) In the absence of these resources, former prisoners often return to criminal behavior. (6) Reentry problems are especially acute for exonerees because they have spent so long in prison. In our data set, the average time spent wrongfully incarcerated was 12.5 years. (7) Thus, there is every reason to think that exonerees may pose a substantial risk for post-release offending. There is also every reason to hope that compensating these victims may have an ameliorative effect.

   This study is part of a larger project on the post-release behavior of wrongfully convicted individuals. Utilizing a data set of exonerees compiled from the Center on Wrongful Convictions at Northwestern University, the larger study tracks the behavior of 118 exonerees following their releases and examines the effects of more than twenty variables on the exonerees' post-release criminality. The variables include demographics such as the nature of the offense for which the exoneree was wrongly convicted, the basis for his exoneration, and whether the individual had a criminal record prior to the wrongful conviction, among others.

   We present here our findings on the effect of victim-compensation statutes on post-exoneration offending, examining compensation as a dichotomous variable--whether compensation is provided or not--and a continuous variable--how much compensation is provided. When treated as a dichotomous variable, compensation has no apparent effect.

   Compensated exonerees offend at roughly the same rate as those who were not compensated. When treated as a continuous variable, however, a pattern emerges. Exonerees who are compensated above a threshold amount of $500,000 commit offenses at a significantly lower rate than those who are either not compensated or compensated beneath the threshold level. Generally, a history of prior offending is an indicator of risk of future offending. However, among exonerees compensated above the $500,000 threshold, those with prior criminal histories offended after release at the same rate as those with no criminal history. Remarkably, exonerees who were compensated below the $500,000 level committed more offenses than those who were not compensated at all, although this finding is not statistically significant.

   Taken together, these findings have profound implications for how the federal and state governments treat exonerees and have the potential to shift the debate, which has heretofore been premised on faimess, to more traditional public policy grounds. Following this Introduction, this Article offers an overview of victim-compensation laws and related scholarship on their effects. Part III describes the larger project of which this study is a part and details the methodology employed. Following the presentation of results in Part IV, the Article continues by presenting two theoretical frameworks that may help make sense of the central findings. The Article concludes with possible avenues for future study and some suggestions for legal reform.

2. A SURVEY OF VICTIM-COMPENSATION LAWS AND RELATED SCHOLARSHIP

   Exonerees may seek official compensation through one of three means: tort claims, private bills, or compensation statutes. Whichever path an exoneree goes down, he encounters substantial obstacles.

   Exonerees may sue the federal government under 42 U.S.C. [section] 1983, (8) or they may sue state governments through common law tort claims for malicious prosecution and false imprisonment. Exonerees rarely prevail on these claims. (9) The standards for either action are daunting. (10) Under either cause of action, demonstrating the wrongfulness of the conviction is insufficient to substantiate the claim. (11) Rather, the exoneree must show a violation of a specific constitutional right. This obstacle is substantial because wrongful convictions result most commonly from erroneous eyewitness identification, false confession, tunnel vision (an unwillingness or inability to consider evidence contrary to an investigator or prosecutor's preexisting theory of the case), perjured testimony, incentivized witnesses (such as informants or jailhouse snitches), or bad science. (12) None of these typical errors necessarily involves a violation of constitutional rights. (13) Even more problematic is that in instances where a constitutional right has been violated, the offending government actors are protected by absolute immunity with respect to prosecutors and judges and by qualified immunity with respect to police officers. (14) Absolute immunity, as its name suggests, is unconditional. (15) Qualified immunity protects government actors from liability except where they have knowingly violated clearly established law. (16) Thus, the exoneree cannot recover in cases where the government has made a mistake or merely failed to exercise due care in avoiding a mistake. Furthermore, the exoneree bears not only the burden of proof at trial but also the burden of initiating the legal action in the first place. This latter burden may be the most substantial. After spending years and often decades in confinement, exonerees generally have no resources and no lawyers. (17) The idea that any prison releasee would have the sophistication to quickly initiate a lawsuit is fanciful.

   Private bills are an alternative to tort claims, though no more hopeful for the exoneree. A private bill is effectively a petition, generally to the state legislature, to compensate an exoneree. (18) An exoneree pursuing a private bill avoids the legal immunities that protect government actors, but in many regards this is a tougher row to hoe. (19) The exoneree who wishes to sue requires only an attorney. The exoneree pursuing a private bill requires a lobbyist and a campaign manager. Like any political initiative, a private bill requires vigorous advocacy and is subject to the vagaries of the political process. (20) Some states have declared private bills unconstitutional. Moreover, generally speaking, state legislatures are poorly equipped to deal with the growing number of wrongful conviction petitions. On the whole, neither private bills nor tort claims are fruitful avenues for exonerees to pursue. (21)

   The best bet for an exoneree seeking compensation is through a preexisting statute, though the picture here is also grim. Only twenty-seven states and the District of Columbia have enacted statutes to compensate the wrongfully convicted. (22) While most of these statutes do not require an exoneree to show government misconduct, most states place substantial restrictions on eligibility. In some states, exonerees may not seek compensation if they somehow contributed to their convictions (by, for example, pleading guilty to the crime or falsely confessing). (23) In other states, only those with official pardons from the government may seek compensation. (24) In still others, only those who were exonerated with DNA evidence are considered eligible. (25)

   Some states impose time constraints on exonerees who seek. (26) compensation. Often, these statutes of limitation are extremely short. For example, California only allows an exoneree two years to file a claim...