Jason Costa, Alone in the World: the United States' Failure to Observe the International Human Right to Compensation for Wrongful Conviction

• Jurisdiction: United States,Federal
• Citation: Vol. 19 No. 3
• Publication year: 2005
• topic: Civil Rights,Criminal Law

ALONE IN THE WORLD: THE UNITED STATES' FAILURE TO OBSERVE THE INTERNATIONAL HUMAN RIGHT TO COMPENSATION FOR WRONGFUL CONVICTION

TABLE OF CONTENTS

INTRODUCTION ..............................................................................................1617

I. COMPENSATION STANDARDS UNDER INTERNATIONAL HUMAN

RIGHTS LAW .......................................................................................1619

A. The Majority: How Countries That Accept Article 14(6) Implement the Right to Compensation........................................1622

1. Incorporation of the Right to Compensation Directly into

Domestic Law .......................................................................1622

2. A Discretionary Right to Grant Compensation ....................1624

3. Acceptance of the Optional Protocol to the ICCPR .............1626

4. Ex Gratia Payments ..............................................................1627

B. The Minority: Reservations and Understandings of Article

14(6) ...........................................................................................1630

II. THE U.S. UNDERSTANDING OF ARTICLE 14(6)...................................1632

A. Understanding the Understanding .............................................1632

1. "An Effective and Enforceable Mechanism to Provide

Compensation".....................................................................1633

2. "Subject to the Reasonable Requirement of Domestic

Law".....................................................................................1634

B. The Effect of the U.S. Understanding Under International

Law .............................................................................................1636

III. THE EXISTING RIGHT TO COMPENSATION FOR WRONGFUL

CONVICTION IN THE UNITED STATES .................................................1637

A. States with No Right to Compensation .......................................1639

B. States with de minimis Compensation Statutes ..........................1639

C. States with Generous Compensation Statutes ............................1640

D. Obstacles to Qualifying for State Compensation .......................1641

E. The U.S. Failure in the International Context ............................1641

IV. RECOMMENDATION: THE UNITED STATES MUST IMPLEMENT A NATIONAL RIGHT TO COMPENSATION FOR WRONGFUL CONVICTION .......................................................................................1642

A. Judicial Methods of Implementing a Right to Compensation.....1642

1. Courts Should Recognize Wrongful Conviction as a Violation of Due Process Rights Under the Fifth Amendment ...........................................................................1643

2. State Judicial Systems Should Implement International

Human Rights Law Directly .................................................1646

B. Political Methods of Implementing a Right to Compensation ....1647

1. Direct Enforcement of a National Right to Compensation

Under Congress' Spending Power .......................................1647

2. Legislation Under Congress' Enforcement Clause Power...1648

3. Direct Implementation of the ICCPR Under Congress' Treaty Power ........................................................................1649

4. Executive Determination ......................................................1649

CONCLUSION..................................................................................................1650

ALONE IN THE WORLD: THE UNITED STATES' FAILURE TO OBSERVE THE INTERNATIONAL HUMAN RIGHT TO COMPENSATION FOR WRONGFUL CONVICTION

Because one of the main sources of our national unity is our belief in equal justice, we need to make sure Americans of all races and backgrounds have confidence in the system that provides justice. In America, we must make doubly sure no person is held to account for a crime he or she did not commit, so we are dramatically expanding the use of DNA evidence to prevent wrongful conviction.

President George W. Bush State of the Union Address Feb. 2, 2005

At least in jail I could still get a job. Out here, I can't even get a Burger King job, dishwashing job, . . . a painter's-I can't get anything. Although I have people trying to help me, I still can't seem to just get by.

[S]ometimes I'd rather be in jail.

Neal Miller

Wrongfully convicted of rape and robbery

Exonerated by DNA evidence after ten years in prison¹

INTRODUCTION

DNA-based technology now enables us to re-examine physical evidence in criminal cases and determine with 100% accuracy that some individuals convicted of crimes were actually innocent. While the resulting exonerations have cast inspiring scenes of courthouse releases and tearful reunions, the stories of these individuals do not end there. These "exonerees" have often already spent months, years, or even decades in prison for crimes they did not commit and face the virtually insurmountable challenge of putting their lives back together without access to financial resources, work training, or government agency assistance. While public sentiment is extremely favorable to their plight, only legislative and judicial bodies can provide a legal remedy for the exonerees' ordeal-and so far U.S. bodies have failed to create such a remedy.

Even as the United States is at the forefront of using DNA technology to re-examine closed cases, U.S. policy and legislation to ensure the right to compensation for wrongful conviction is among the poorest in the world. Almost every country recognizes the right to compensation in the case of wrongful conviction as a matter of domestic or international human rights law. But instead of providing swift and consistent access to resources for its exonerees, the United States has failed to enact federal legislation either to directly provide compensation for all confirmed wrongful convictions or to mandate that the states effectuate such a program.²As a result, exonerees in the United States must tackle a patchwork of state-by-state compensation statutes which leaves the majority absolutely no compensation for their wrongful conviction. Even if freed individuals happen to live in one of the minority of states that does authorize some compensation, the odds are slim that the state will provide sufficient funds to allow them to rebuild their lives.

While U.S. officials have tried to justify the American position by citing a non-binding understanding within a key international treaty,³meeting international human rights standards requires the United States to develop mechanisms to address this growing problem. It is the United States' obligation under international human rights law to provide the right to compensation in cases of wrongful conviction.

Even as we rejoice in the freeing of an exoneree, we must also recoil at the words of Neal Miller: "[S]ometimes I'd rather be in jail."⁴Freeing exonerees is only half the solution. In the twenty-first century, the challenge for any government that wrongfully imprisons a person is also to recognize the value of what was taken away and to fairly compensate that individual for his or her loss. President Bush's promise to prevent wrongful conviction must be coupled with a commitment to provide adequate compensation to those who suffer this supreme injustice.

Part I evaluates compensation standards under international human rights law by examining in detail the provisions of Article 14(6) of the International Covenant on Civil and Political Rights.⁵Part I.A assesses the various methods employed by the majority of countries to implement these rights, while Part I.B explores the minority of countries that made a reservation to Article 14(6) and the details of these reservations.

The remainder of the Comment focuses on wrongful conviction compensation in the United States. Part II introduces the unusual U.S. understanding of Article 14(6) and analyzes primary and secondary materials that provide additional information about the U.S. position. This section also assesses the significance of the U.S. reservations under international treaty law and examines the role of customary law in determining whether an international right to compensation for wrongful conviction exists.

Part III examines the right to compensation as it currently exists in the United States, comparing the different state remedies available for exonerees and identifying the shortcomings of the U.S. approach. Part IV recommends ways the United States could incorporate into U.S. law the right to compensation in cases of wrongful conviction, considering both political and judicial methods for achieving this goal. The Comment concludes by summarizing the international position on the right to compensation and identifying the path the United States should follow to live it up to its international obligations.

I. COMPENSATION STANDARDS UNDER INTERNATIONAL HUMAN RIGHTS

LAW

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.⁶

Article 14(6) International Convention on Civil and Political Rights

Within international law the foundation of the right to compensation for wrongfully convicted individuals is undoubtedly the International Convention on Civil and Political Rights (ICCPR), which has 154 parties, including the United States, the United Kingdom, France, Spain, China, Germany, Japan, the

Russian Federation, Canada, and Australia.⁷The ICCPR, which came into full effect in 1979, is the most detailed and widely ratified convention that provides human rights to citizens of party countries.⁸The key provision with respect to exoneree...