Restorative Justice and Wrongful Capital Convictions

• Published date: 01 August 2005
• Author: Cathleen Brnett
• DOI: 10.1177/1043986205278630
• Date: 01 August 2005
• Subject Matter: Articles

10.1177/1043986205278630Journal of Contemporary Criminal Justice / August 2005Burnett / RESTORATIVE JUSTICE

Restorative Justice and

Wrongful Capital Convictions

A Simple Proposal

CATHLEEN BURNETT

University of Missouri

Todate, little attention has been given to the problems associated with restoring or compensating

persons who have been wrongfully convicted of serious crimes. Most of the discussion has

focused on the legalsystem as the most appropriate remedy in a retributive justice system, ignor-

ing the unintended consequences of judicial remedies that create barriers to adequately reinte-

grate individuals into society.This article reviews the strategies currently available to compen-

satethe wrongfully convicted and uses the restorative justice framework to propose an alternative

approachthat is extrajudicial, grounded in the executive branch’sresponsibility to provide for the

administration of justice.

Keywords: restorative justice; wrongful convictions; compensation; victims; death penalty;

innocence

To date, little attention has been given by those concerned about victimsto

the problems associated with restoring or compensating persons who

havebeen wrongfully convictedof serious crimes. Most of the discussion has

focused on the legal system as the most appropriate remedy, ignoring the

unintended consequences of judicial remedies in a retributive justice system

that creates barriers to adequately reintegrate individuals into society. This

article reviews the inadequacies of the strategies currently availableto com-

pensate those wrongfully convicted of capital crimes and uses the restorative

272

The author wishes to thank Dick Dexter (1941-2005) and Joe Amrine for sharing their experi-

enceswith her.Theycollectively spent 24 years on Missouri’s death row before being exonerated

and released.

Journal of Contemporary Criminal Justice, Vol. 21 No. 3, August 2005 272-289

DOI: 10.1177/1043986205278630

© 2005 Sage Publications

justice framework to propose an alternative approach that is extrajudicial,

grounded in the executive branch’s responsibility to provide for the

administration of justice.

WHAT IS THE PROBLEM?

All 50 states have arrangements for releasing prisoners with some sup-

plies, which may apply to the wrongfully convicted as well as to those prison-

ers who have served rightful sentences. Unfortunately, the provisions of the

release packages are mere tokens. Typically included in the release package

are clothing for the day, a bus ticket, and what is called “gate money” ($10-

$150) when they are released from custody (Bowman, 2003; “The DNA

Defense,” 2005; Lopez, 2002). No one would suggest that these provisions

are sufficient to provide for the transition needs of the former prisoner into

the free society. Prisoners who are paroled and required to be under supervi-

sion for a period of time at least have the benefitof potential support for sur-

vival needs and accountability.Ironically, wrongfully convicted persons are

not eligible for these minimal state supports and so have fewer resources

available to them to resume their livesthan those who have rightfully served

their prison time. If the wrongfully convicted are released with these small

provisions, that is likely all that they ever receive from the state.

According to Barry Scheck and his colleagues at the Innocence Project,

only 37% of all wrongfully convicted persons (not just death penalty cases)

receive compensation (Scheck, Neufeld, & Dwyer, 2000). Regrettably, not

all states havemechanisms to compensate the wrongfully convicted. Only 20

states have institutional pathways for seeking at least partial financial redress

(Innocence Project, 2005). In addition to recovery of financial losses, the

wrongfully convicted have multiple needs adjusting to civilian life. In fact,

the essential problem facing the wrongfully convicted is howto become rein-

tegrated into society. Certainly, money is part of the solution, but reintegra-

tion requires time and support by the community.

Although this problem is significant for all persons wrongfully convicted,

this article focuses on the plight of persons coping with erroneous capital

convictions.They are the ones who have faced the awful ultimate punishment

of loss of life by intentional state killing. They most likelyfaced tremendous

publicity and remain psychologically scarred by the stigma and denigration

of imprisonment. Therefore, the argument can be made that those exonerated

and released from death row are most especially deserving of assistance and

any program developed to remedy their suffering then could be extended to

all others wrongfully convicted.

Nationally,119 persons have been released from death rows1who are clas-

sified as “actually innocent” by the Death Penalty Information Center

Burnett / RESTORATIVE JUSTICE 273