OBSTACLES AND BARRIERS AFTER EXONERATION.

• Author: Goldberg, Lily

Table of Contents Introduction 831 I. Barriers in Compensation 833 A. Barriers in Private Bills 833 B. Barriers in Litigation 834 C. Barriers in Compensation Statutes 835 D. Obstacles After Compensation Is Awarded 839 E. Compensation Reform 840 II. Barriers in Mental Health 841 III. Mental Health Compensation Reform 844 IV. Barriers in Reintegration 845 A. Financial and Employment Barriers 845 B. Personal Barriers 847 C. Barriers in Stigma and Public Perceptions 848 V. Barriers in Attaining Compensation Due to Public Perception 850 VI. Reform 853 Conclusion 854 INTRODUCTION

Individuals who are exonerated for crimes they did not commit face a variety of barriers after exoneration. (1) Difficulties in mental health, reintegration, and experiences of stigma are common among exonerated individuals. (2) Further, compensation for the injustice levied upon them as an innocent person incarcerated in our criminal justice system is far from uniform across states and jurisdictions. (3) For example, Ronald Taylor was convicted of sexual assault and sentenced to sixty years in prison in Texas. (4) After twelve years of incarceration, DNA evidence demonstrated actual innocence, and Taylor was freed. (5) Under Texas's state statutes for compensation, Taylor was eligible for $80,000 for every year that he was wrongfully imprisoned. (6) Instead of receiving the $1.1 million resulting from that calculation, he received an offer for $20,000. (7) Eligibility requirements in Texas's compensation law required that Taylor be free of prior convictions to be eligible for the full compensation amount, resulting in a reduced amount. (8) Taylor represents one of several exonerees who have experienced losses in compensation due to eligibility requirements. Billy James Smith and Gregory Wallis also received less in compensation due to the law's requirement that the exonerated individual be free of prior convictions to be eligible for full compensation. (9) Taylor, Smith, and Wallis were all on parole when they were wrongfully convicted for sexual assault charges. (10)

In another case, an exonerated individual was not eligible for compensation. Andrew Johnson was wrongfully convicted of sexual assault in the State of Wyoming. (11) Johnson spent twenty-four years wrongfully incarcerated before being exonerated by DNA evidence. (12) When Johnson was exonerated, he left prison with no "job, health insurance, a car, or retirement income" and has acquired serious health problems. (13) Wyoming does not possess compensation legislation for exonerated individuals. (14) These are just two instances out of hundreds in which those who have been wrongfully convicted were not adequately compensated or supported upon reentry.

Similarly, in 2004, Wilton Dedge was exonerated after spending twenty-two years in prison in Florida for a crime he did not commit. (15) Upon release, Dedge was not entitled to compensation from the state, and the lawsuit he filed seeking compensation from the state was dismissed by a trial court. (16) To seek compensation, Dedge was forced to seek assistance through a private bill in the legislature, which was eventually awarded. (17) However, forcing exonerated individuals to seek compensation through the legislature in the form of private bills makes compensation for exonerated individuals a political issue and relies on the resources of the exonerated individuals in successfully navigating that mechanism, (18) which can result in unequal access to justice. (19) Compensation should not be a political issue or based on an individual's resources. (20)

Compensation is just one of the barriers a wrongfully convicted individual faces post-exoneration. Psychological trauma experienced by wrongful imprisonment is common, (21) and few reentry services are available for exonerated individuals, even when compared to services available for prisoners who are released upon parole. (22) In this Article, we provide a review of barriers and obstacles exonerated individuals may face after exoneration in the areas of compensation, mental health, and reintegration into society. We also suggest solutions for overcoming these obstacles at a societal level.

1. BARRIERS IN COMPENSATION

   Most state statutes governing compensation for exonerated individuals have been enacted since 2000. (23) This increased interest in compensation is in part due to the improvement and use of DNA technology in providing definitive evidence about an exoneree's innocence. (24) There are three main mechanisms that exonerated individuals can use to receive compensation, including private bills, litigation, and compensation statutes. (25) Each of these mechanisms come with their own limitations, and importantly, it may take many years for exonerated individuals to receive compensation through any one of them. (26) Compensation is rarely granted immediately. (27)

   1. Barriers in Private Bills

      Compensation for exonerees may happen through private bills or litigation, although this is the rarest mechanism by which exonerees may receive compensation. (28) Exonerees attempting to obtain compensation through private bills or litigation face additional obstacles such as a higher burden of proof, immunity of state actors, and time consuming and costly process. (29) In addition, requiring compensation for exonerated individuals take place through the legislature makes compensation a political issue (30), and political ideology may influence the support for wrongful conviction laws. (31) Thus, using private bills as a mechanism for compensation results in an uneven availability of compensation for exonerated individuals who may vary in resources, skill, and political acumen, and whose cases may vary in appeal to legislative actors.

   2. Barriers in Litigation

      To obtain compensation through litigation, the exonerated individual must first identify who they can take action against. (32) In cases where wrongful convictions are due to the actions of law enforcement, these participants are generally protected against liability for damages they have caused under qualified immunity. (33) That is, if an employee of the state performs actions that result in a wrongful conviction, the state is not liable unless the state waives its immunity. (34) If the state does not waive immunity, plaintiffs may have the ability to sue smaller entities, such as individual cities. (35)

      Even with this option, there are more criteria that need to be met in order to pursue legal action. To hold police liable, a judge needs to decide if their actions were negligent. (36) Requiring negligence as a condition of compensation is problematic in that an officer may act correctly under the given circumstances, but nonetheless that non-negligent action may result in a wrongful conviction. (37) In these cases, it would be difficult for an exonerated individual to attain compensation through litigation. Scholars have argued that even if criminal justice actors were performing their duties competently, the correct action does not rule out the need to take responsibility for someone being wronged by the system. (38)

      Further, if it is deemed that a police officer is liable, but the officer's actions were not authorized by their employer, the individual officer would be held liable, not the municipality employing that officer. (39) In such cases, requiring the officer to be individually liable for their actions if they were not sanctioned by the employer results in plaintiffs seeking damages from individuals without resources to provide adequate compensation. (40)

   3. Barriers in Compensation Statutes

      Due to the difficulty of receiving compensation through private bills and litigation, recent arguments by scholars and legal organizations have favored statutes as a mechanism to provide monetary and nonmonetary compensation for exonerated individuals. (41) Compensation statutes are more likely than other forms of compensation to result in a uniform distribution of compensation across exonerees and require less burden on the exonerated individual to make the political case and invest personal resources for his or her compensation. (42) However, even with the significant growth of compensation statutes, fifteen states are still lacking legislation that could help ensure they take responsibility for the costs of wrongful conviction for exonerated individuals. (43) Further, variations in factors states consider, amount and type of compensation, eligibility requirements, and discretion in decision making still result in uneven outcomes across cases.

      Currently, thirty-five states and the federal government provide specific compensation statutes for wrongfully incarcerated individuals. (44) Eighteen of those states, the District of Columbia, and the federal government provide at least $50,000 per year of wrongful incarceration; eight states and Washington DC providing more than $50,000 per year. (45) States may also award additional compensation for exonerated individuals who spend time on death row or in a post-release supervision program. (46) At the federal level, exonerated individuals may receive an additional $100,000 per year spent on death row, and in four other states, exonerated individuals are eligible for additional compensation if they spent time incarcerated on death row, varying from $25,000 to $50,000. (47) Three states include compensation for time spent on post-release supervision or a sex offender registry in the amount of $25,000 per year. (48)

      Beyond monetary compensation, nineteen states currently offer nonmonetary services for exonerees in the statutes. (49) Currently, fourteen states offer some form of tuition or educational assistance. (50) Nine states offer assistance with medical expenses, and twelve states offer counseling services. (51) Six states offer some form of reentry services, seven states offer job search assistance, and three states offer housing assistance. (52) Of all the statutes examined...