Re-punishing the innocent: false confession as an unjust obstacle to compensation for the wrongfully convicted.

Author:Scholand, Gregory P.

"Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream."

--Learned Hand, 1923 *


In 2006, Douglas Warney was released from prison after serving nine years and two months for a murder he did not commit. (1) The resident of Rochester, New York, was convicted of stabbing a neighborhood acquaintance to death in 1997 and sentenced to twenty-five years to life, but he was exonerated after a DNA test of crime scene evidence implicated another man, who subsequently confessed. (2) By the time of his release, Warney had spent (3),380 days in prison for the crime.3 New York State's Unjust Conviction and Imprisonment Act, (4) in force since 1984, is designed to compensate exonerees for the time they spent wrongfully incarcerated. But when Warney filed a claim, he was denied. (5)

The statute makes an exoneree eligible for compensation only if he "did not by his own conduct cause or bring about his conviction." (6) Warney, who was mentally disabled with an IQ of sixty-eight and suffering from AIDS-related dementia, had signed a written confession that served as the centerpiece of the prosecution's case. (7) He later recanted and claimed he had been coerced by interrogators a claim bolstered by the DNA results--and his attorneys discovered factual anomalies suggesting police misconduct during his interrogation. (8) But a New York judge decided that his case met the statutory standard: Warney had caused or brought about his own conviction by confessing, and so in recompense for those 3,380 days, New York State owed him nothing. (9)

The oft-quoted principle that it is better to let guilty men go free than to punish an innocent man is axiomatic in Anglo-American criminal law and has deep roots. (10) Besides reflecting the fundamental value our legal system places on personal liberty and the high burden required to deprive someone of that liberty, the principle also embodies a basic admission--that the single most egregious error a justice system can commit is to punish the innocent.

The natural corollary to this principle is that society has a special responsibility to make efforts toward righting the wrong when it occurs. A majority of U.S. states, along with the District of Columbia and the federal government, have recognized that responsibility by passing statutes that provide compensation for exonerees after their release. Like New York's, however, many of these statutes include conditions that deny compensation to certain categories of exonerees. Such conditions are based largely on the rationale that some exonerees, despite the reversal of their convictions, in one way or another contributed to their own plight. The statute drafters deemed such contributions worthy of punishment, deciding that society does not owe the same responsibility to these exonerees that it owes to others.

Reasonable minds may differ on the propriety of ever denying compensation to someone who was incarcerated for a crime he did not commit. But all should agree that denials of compensation, if they are to occur, should be limited to exonerees whose contributory conduct was truly blameworthy--that is, outside the range of conduct society reasonably expects of defendants in the criminal justice system.

This Note argues that one type of preconviction conduct, the false confession, which has contributed to scores of demonstrably wrongful convictions in America, should never be allowed to serve as an automatic basis for the denial of exoneree compensation. In recent years, criminological and psychological research have provided a greater understanding than ever of the causes of false confessions. They have revealed that a popular common-sense assumption--that no one would confess to a crime he did not commit unless he had some ulterior motive, was recklessly dishonest, or was coerced via torture--simply does not reflect reality. Powerfully refined modern interrogation tactics can manipulate innocent people into confessing, and sometimes even into believing their own confessions, through no genuine fault of their own. There is potential for great injustice when state compensation systems fail to adapt to this modern understanding, imposing restrictions broad enough to deny compensation to exonerees whose "contribution" was not blameworthy by any reasonable standard.


    Throughout most of the American justice system's history, there was "little reason to take much stock in [postconviction] claims of innocence." (11) Once a defendant had been found guilty, the odds of producing new evidence sufficient to upset a jury verdict were astronomically low. Then, as now, "many claims of innocence [were] made, but few [were] sustained." (12) But in the late 1980s, the first applications of forensic DNA identification introduced a "revolution in the criminal justice system." (13) Suddenly, it was possible in certain cases to produce conclusive scientific evidence of a wrongful conviction years or even decades after the crime. With the rise of The Innocence Project and other prisoner advocacy groups, the number of annual DNA exonerations nationwide increased steadily throughout the 1990s and now hovers at around twenty per year. (14) In short, DNA "has taught us ... that there are more innocent people in jail than we ever thought." (15)

    As the number of overturned convictions grew, more and more states confronted the need to compensate exonerees for the justice system's failure and for the losses they suffered due to their incarceration. Whereas compensation statutes were once a rarity, found only in a few states where public attention to a high-profile exoneration had stirred the legislature to action, (16) the 2000s saw a boom in state legislative progress. Thirteen states passed new statutes, nearly doubling the number of states offering some form of statutory compensation to twenty-seven (plus the District of Columbia and the federal government). (17) Others updated their statutes to raise the amount of exoneree awards. (18) In 2004, Massachusetts became the first state to supplement its monetary compensation with "services ... reasonable and necessary to address any deficiencies in the individual's physical and emotional condition." (19) More states quickly followed suit, and ten now offer some form of addition support, including job training and placement, health insurance, counseling, housing assistance, and legal services. (20) Such efforts reflect a growing recognition of the many hardships exonerees face upon release. (21)

    Statutes are not the only avenue for compensation available to the wrongfully convicted after exoneration. Exonerees may also turn to civil lawsuits, though this alternative is costly and time consuming, and typically requires a showing that the conviction was due to intentional misconduct by an identifiable party. (22) Private bills, by which a state legislature acts to compensate one specific individual, have also been used in a handful of cases, though they are "dangerously prone to becoming 'popularity contests' based as much on the celebrity of the exoneree and the legislator introducing the bill as on the merits of the case." (23)

    For those reasons, scholars and exoneree advocates generally agree that statutory compensation is the "only reliable and fair response to the inevitable mistakes that occur as a byproduct of the operation of a criminal justice system as large as ours." (24) The powerful social-justice rationale for a uniform compensation regime funded with public money was eloquently stated by Yale University Professor Edwin Borchard in 1941: "Where the common interest is joined for a common end--maintaining the public peace by the prosecution of crime--each individual member being subject to the same danger (erroneous conviction), the loss when it occurs should be borne by the community as a whole and not by the injured individual alone." (25)


    Two justifications are typically advanced to support restrictive conditions in exoneree compensation statutes: cost and a desire to avoid compensating the undeserving. (26) The cost concern is facially unconvincing, as the small number of exonerations, even after the rise of DNA identification, practically guarantees that compensating exonerees will never amount to more than a tiny fraction of a state's criminal justice budget. Even the four states with the most exonerations--Illinois, New York, Texas, and California--averaged between just two and three per state per year from 1989 to 2003, "a number that cannot reasonably be claimed will break the bank." (27) In addition, the rate of DNA-based exonerations will inevitably decline as the technology is more frequently employed during criminal investigations and trials, so that a defendant whose DNA proves his innocence is increasingly unlikely to be convicted in the first place. (28)

    The worry over compensating the undeserving, however, is more complex, and it is certainly not new. A hundred years ago, writing a report on European compensation statutes for the U.S. Congress while serving as its Law Librarian, Borchard approvingly referenced "the equitable maxim that no one shall profit by his own wrong or come into court with unclean hands." (29) He noted that the European statutes generally incorporated some form of bar to limit compensation "to those only who are clearly shown to deserve it," (30) and included as one example of the undeserving a defendant who "by willful misconduct or negligence, contributed to bring about his arrest or conviction." (31)

    If the animating principle behind exoneree compensation statutes...

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