Uneven reparations for wrongful convictions: examining the state politics of statutory compensation legislation.

Author:Owens, Michael Leo
Position:Revealing the Impact & Aftermath of Miscarriages of Justice

The whole matter of compensation for unjust convictions for felonies and lesser crimes is well worth further study, to the end that within measurable time remedial legislation may cure this defect in our social institutions. (1)


    One of the fascinating findings from interviews with the wrongly convicted is that they harbor little or no anger--or more accurately, that "joy overrides the anger"--towards the State following their release from imprisonment. (2) At the same time, they imagine and wish for compensation for their wrongful convictions, especially when it resulted in their incarceration and particularly when they faced the death penalty. (3) Too often, however, recompense remains a mirage. In an age when state governments willingly spend tens and hundreds of millions of dollars to try to positively reintegrate the justly convicted back into society, the unjustly convicted must scrape, toil, and fight for arguably paltry portions of state dollars to positively reintegrate them. (4) As Alan Northrop put it after he served seventeen years in a Washington state prison for a rape he did not commit, "I got no apology, no nothing, no offer of any kind of financial aid." (5) He is not alone.

    In the United States, financial compensation for wrongful convictions eludes many of its victims, including those exonerated of crimes. (6) The best empirical evidence of the difficulty the wrongly convicted face in accessing compensation comes from the Innocence Project and its national database of individuals exonerated through DNA testing. As of 2009, forty percent of them were awaiting compensation by their states. (7) Some of the wrongfully convicted reside in states where financial compensation is only possible (but unlikely) through civil litigation and private legislation. (8) Others live in states with statutes permitting compensation, but barriers to it may remain, resulting in few of the wrongly convicted receiving compensation. (9) A study by California Watch, for example, found that of the 132 claims submitted between 2000 and 2011 for compensation by persons determined to have been wrongly convicted by California, eleven claimants (approximately eight percent) received compensation from the state's Victim Compensation and Government Claims Board. (10)

    Nonetheless, many states have chosen restorative policy designs for the wrongly convicted, including compensation statutes. (11) This is a cause for hope. For a long time, however, it seemed that states were unlikely to make much progress in compensating those whose lives had been irrevocably damaged by wrongful conviction and incarceration. Almost a decade ago, for instance, Adele Bernhard expressed the exasperation of reformers in light of limited success at spreading innovations in wrongful conviction compensation throughout the states:

    I anticipated that the continuing parade of exonerations, in state after state across the country, would prompt local legislatures to enact new statutes benefiting the unjustly convicted and later exonerated in states that lacked such mechanisms and to modernize imperfect statutes in states where compensation statutes had not been revisited in years. I was wrong. (12) Upon reflection, Professor Bernhard and others were not wrong; they were righteously and justly impatient. Even now, a decade later, many states have yet to enact such statutes. (13) Yet that truth need not foster hopelessness among reformers and those who would benefit from reforms.

    Policy change is possible. In fact, "large scale change is not an anomaly. There is no iron law of equilibrium that restricts policy making to incremental changes once a policy is established." (14) While it is correct that "[f]ailure is the norm" for criminal justice policies, (15) and the speed of policy change in the United States can be glacial, the consensus among scholars of American politics and public policy is that policy change "is not gradual and incremental, but rather is disjoint[ed] and episodic," with "bursts of frenetic policy activity" disturbing "[l]ong periods of stability." (16) These fits of stops and starts aptly reflect the history of states enacting statutory compensation in the United States.

    Figure 1 illustrates the "punctuated equilibrium" (17) of wrongful conviction compensation statutes between 1900 and 2011. There was the long period of stability--approximately seventy years--when almost no states enacted statutory compensation. (18) Then, beginning in the early 1980s, states began to enact statutory compensation, and since then we have witnessed a spate of enactments--and lack of abolition--of wrongful compensation statutes, especially over the last decade. (19) Between 2000 and 2011, twenty-three states adopted some form of compensation law, with seventeen of those doing so since 2006, bringing the total number of states with any statutory compensation upon wrongful conviction to twenty-seven. (20)


    While far from universal in coverage and displaying dramatic differences in quality, (21) a majority of states (albeit a small majority) have statutes that permit and provide for compensating the wrongly convicted or have revisited their statutes to strengthen them. (22) Moreover, as of 2004 the federal government encourages the states to "provide reasonable compensation to any person found to have been unjustly convicted of an offense against the State," albeit solely for those who were on death row and without incentives for states to enact statutory compensation systems. (23)

    The move toward enacting wrongful compensation statutes is heartening. This is true even if the news and trend are far from clear signals of a new direction from the penal turn that criminologist David Garland has described. (24) Nevertheless, variation in the presence of compensation statutes across the fifty states remains the norm, as not all states have such statutes, much to the consternation of the wrongly convicted and their advocates. (25) Furthermore, merely noting the variation in presence and absence of wrongful conviction compensation statutes is neither adequate to comprehend the presence and absence of such statutes, nor sufficient to understand the diverse origins of these statutes. Identifying variation, as Robert J. Norris writes in a forthcoming evaluation of wrongful conviction compensation statutes in the United States, is "a first step toward building a theoretical understanding of wrongful conviction policy ... [and] the next step is to understand the source of such variation." (26) We take that next step in this article, exploring and testing explanations for the policy choices of the states regarding compensation for the wrongly convicted.

    Like Marvin Zalman, who contends that scholars must place politics more squarely in the examination of the choices of states that affect the lives of the wrongly convicted, we seek to expand the study of (and advocacy for) compensation for wrongful convictions to attend much more to politics than extant scholarship does. (27) In line with that desire, we take up questions like those Norris posed to the field about the presence of wrongful conviction statutes across the states: "Are such policies simply reactions to large numbers of exonerations? Is the development of compensation statutes and other wrongful conviction policies a partisan political issue? Do structural and cultural characteristics of jurisdictions affect the passage of such laws?" (28) Ultimately, we seek to begin a line of research on political explanations for why some states have wrongful conviction compensation statutes while others lack them.

    With this article we aim to draw more attention to the possible social and political determinants affecting state enactment of statutory compensation for wrongful convictions. We draw from the political science literature to begin to develop a theory for the presence of wrongful compensation statutes and derive preliminary theoretical implications. This may seem strange. The social sciences, especially political science, have generally ignored the issue of wrongful convictions. (29) It is less strange when we recognize that the reform of wrongful conviction compensation schemes requires considerations of problem definition, agenda setting, interest group mobilization, and policy choice and change, all of which are topics central to and informed by American politics research. Subsequently, we test a set of political hypotheses on an original, cross-sectional data set, employing logistic regression.

    Our results provide tentative evidence that a narrow set of factors influence whether states have and maintain wrongful compensation statutes. These findings, however, are suggestive, not conclusive. Still they may point scholars in fruitful directions that yield better empirical analyses of compensation for the unjustly convicted and provide advocates with more than anecdotes about the political factors that advance or hinder legislative campaigns for compensating the wrongly convicted. At a minimum, our study illustrates how inquiries rooted in the social sciences may inform the legal study of the enactment, maintenance, and diffusion of wrongful compensation statutes among the states.

    We begin by offering a brief critique of the legal scholarship on compensating the wrongfully convicted, emphasizing its general neglect of politics. Next, we focus on the broader politics of reparation (30) and compensation, offering ideas about how the social construction and political resources of the wrongfully convicted may influence broad support for their recompense. From there we deduce from the social science literature a set of hypotheses about the presence of statutory compensation. We follow this with an original analysis of state-level data on the presence of wrongful conviction compensation statutes. Finally, we draw out implications from our analysis and suggest subsequent...

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