Public perception of wrongful conviction: support for compensation and apologies.

• Author: Clow, Kimberley A.
• Position: Revealing the Impact & Aftermath of Miscarriages of Justice

ABSTRACT (1)

With over 280 post-conviction DNA exonerations through Innocence Projects in the United States alone and half a dozen Commissions of Inquiry into wrongful convictions in Canada, the public may be more aware of wrongful convictions than ever before. Recent research, however, has documented the paucity of resources available post-conviction for individuals who have been wrongly convicted, the limited and financial focus of current compensation statutes, the many difficulties in obtaining compensation, and the desire of many individuals who have been wrongly convicted to receive an apology for the injustices they have suffered. To investigate public perception of compensation, face-to-face interviews were conducted with fifteen community members. Findings suggest that all interviewees believed that individuals who have been wrongly convicted should receive compensation and apologies. Many felt these individuals needed financial compensation in order to start over, and that they deserved compensation because of the time they had lost while wrongly incarcerated and the damage done to their reputations. Interviewees also felt that public apologies would positively impact the Criminal Justice System, as well as benefit the wider community. Interviewees also mentioned a number of nonfinancial forms of compensation they felt wrongly convicted individuals should receive, including employment training and assistance, housing assistance, and other services. Although most interviewees reported not knowing how much money individuals received in compensation, they felt the dollar amount should be related to particular factors, such as the length of time wrongly incarcerated, character damage, and the impact on their health. Although these findings appear positive, it is noteworthy that forty percent of the sample brought up issues of the judicially released guilty during the interviews, perhaps suggesting that they felt wrongful conviction was of equal (or lower) importance as the guilty who got away.

1. INRODUCTION: PUBLIC PERCEPTION OF WRONGFUL CONVICTION: SUPPORT FOR COMPENSATION AND APOLOGIES

   As of January 10, 2012, the Innocence Project had exonerated 289 American citizens through post-conviction DNA testing. (2) Samuel Gross, Kristen Jacoby, Daniel Matheson, Nicholas Montgomery, and Sujata Patel found 196 wrongful conviction cases in the United States from 1989 to 2003 where evidence other than DNA was used to declare a defendant not guilty of a crime for which he or she had been convicted. (3) In Canada, the Association in Defence of the Wrongly Convicted CAIDWYC") has played a role in the exoneration of eighteen Canadians. (4) Anthony Doob, however, surveyed defense counsel in the province of Ontario and found that nearly half of the sample (n=94; 46.3%) believed they had represented at least one client who was factually innocent but convicted to serve at least one year in prison. (5) Although the exact number of incarcerated innocents is unknown, (6) a conservative estimate of 0.5% of all convictions being wrongful convictions would translate into approximately 7,500 wrongful convictions in the United States in the year 2000 for index crimes alone (7) or roughly 1,000 innocent people incarcerated in the United Kingdom each year. (8) Innocence organizations exist internationally (e.g., Germany, Australia, Japan) (9) as there are thousands--if not tens of thousands--of individuals who have been wrongly convicted worldwide.

   Saundra Westervelt and Kimberly Cook argued that victims of wrongful conviction are often re-victimized post exoneration because the government fails to provide them with meaningful assistance (e.g., employment, housing, etc.). (10) In fact, many individuals who have been wrongly convicted do not receive anything from the government upon their release; particularly given that some do not even qualify for assistance provided to those rightly convicted and released on parole. (11) Some individuals who have been wrongly convicted are entirely dependent upon their families and friends (and, in some cases, the advocates who fought for their release) for basic necessities, such as food and shelter. (12) As one American exoneree explained, "[t]he judge quashes your conviction and you feel elated, but then you emerge with no money, no accommodation, no health care, no counselling, [sic] nothing to equip you for the place you have been away from for so long." (13) Jennifer Chunias and Yael Aufgang argued that wrongly convicted individuals should be provided with meaningful services upon release as it: (1) repays them for the nonmonetary injuries they have experienced as a result of their wrongful incarceration (e.g., lost income, broken social ties); and (2) provides needed assistance (e.g., employment training, counseling) to help with societal reintegration. (14) Furthermore, their false conviction (i.e., criminal record) is not automatically expunged, (15) causing these innocent individuals to be treated like actual offenders when they seek employment or try to travel outside of their country's borders.

   Peter Shore suggested that financial compensation was required if a wrongly convicted individual was to attain the position he or she would have held had they not been victimized by the criminal justice system (taking into account the loss of both past and future earnings, as well as legal costs). (16) In addition, providing wrongly convicted individuals with monetary compensation improves their ability to re-enter society. (17) Although monetary compensation does help, researchers and advocates for the wrongly convicted have pointed out that money alone does not sufficiently assist these individuals in their post-incarceration struggles. (18) In particular, researchers have claimed that current compensation practices are insufficient. (19)

   As of May 2011, barely half of the states in the USA (n=27) had a compensation statute. (20) Moreover, in states with compensation statutes, the application process was often legally complex, costly, and involved a considerable time delay (often more than two years post-incarceration) before compensation was received. (21) Furthermore, American compensation statutes contain many disqualifications and limitations that discriminate against particular wrongly convicted individuals, such as those who pled guilty (possibly to a lesser offense in fear that they would be wrongly convicted of a more serious crime) or falsely confessed. (22) Similar restrictions to compensation seem to apply in Canada as well, where Kyle Unger was denied compensation for his wrongful conviction a few years ago and the provincial Justice Minister of Manitoba said it was because he falsely confessed. (23) Thus, it appears that prejudice influences compensation statutes. (24)

   Research also suggests that only a small proportion of wrongly convicted individuals receive any form of compensation from the government. For example, by 2009, only sixty percent of the first 200 Innocence Project DNA exonerees had received any form of compensation from the government. (25) Moreover, of the eighteen American death row exonerees interviewed by Saundra Westervelt and Kimberly Cook, only one had received compensation for his/her wrongful conviction at the time of the interviews. (26) Jennifer Curtiss interviewed fifty-five wrongly convicted individuals and found that forty-seven had applied for compensation: ten were denied and twenty were still awaiting a decision by the end of the study. (27)

   In cases where wrongly convicted individuals do receive compensation, it is usually financial compensation only. (28) Money, however, fails to address many issues faced by exonerees, such as the large gap in their job experience, poor job skills, inexperience with modern technology, anxiety or depressive disorders, broken social ties, and health problems. (29) Although money may assist with some of these obstacles of reentry, wrongly convicted individuals need financial assistance immediately upon release and they often require additional services as well. (30)

   For individuals who have been wrongly convicted, compensation may be perceived as symbolic recognition of the wrong they have endured. (31) Many wrongly convicted individuals acknowledge that money will not restore their lives to its pre-conviction state, but they see compensation as a source of closure, whereby the justice system assumes some level of responsibility for what happened to them. (32)

   Another potential source of closure for wrongly convicted individuals is through apologies; although, apologies occur less frequently than compensation. (33) In fact, rather than apologizing, some government officials have openly spoken against an exoneree's innocence. For example, the prosecutor for Kirk Bloodsworth's case (the first man exonerated from death row based on post-conviction DNA testing) chose to say: "[a]lthough we're releasing Mr. Bloodsworth, we're not prepared to say he's innocent. However if we had had this [DNA] evidence in 1984, we wouldn't have prosecuted him." (34) Thus, rather than apologizing, the actions of some government officials appear to perpetuate perceptions of the erroneous conviction, further victimizing wrongly convicted individuals.

   The decision not to apologize is unfortunate, as apologies can be beneficial to wrongly convicted individuals, by facilitating the healing process through forgiveness, restored dignity, and averting feelings of vengeance. (35) For example, exoneree Alan Newton noted that apologies mean "somebody actually cares on the other side.... [A]nger will eat you up inside, but [an] apology restores my faith in individuals." (36) Without an apology, wrongly convicted individuals are not formally "de-labelled," creating a greater struggle for them to reshape their identities as innocent people. (37) In addition, the reluctance of the justice system to issue an apology ensures that society...