Without legal obligation: compensating the wrongfully convicted in Australia.

• Author: Dioso-Villa, Rachel
• Position: Revealing the Impact & Aftermath of Miscarriages of Justice

ABSTRACT

After exoneration, some innocent individuals seek financial compensation and social services to aid with their reintegration into society. Since not all countries or jurisdictions have compensation legislation, exonerees are left with limited alternatives to address financial, psychological, and health issues that are often consequences of the wrongful conviction and incarceration. In common law jurisdictions, one compensation remedy is the application for ex gratia, "out of grace" payments, for wrongful convictions. Australia is one of the few common law jurisdictions that do not have state or federal compensation statutes for exonerees, leaving ex gratia payments as the primary means to seek restitution. However, there are no guidelines to evaluate cases or allocate awards. Furthermore, ex gratia decisions are indisputable without the chance of appeal. This article reviews successful and unsuccessful ex gratia applications for wrongful conviction in Australia from 1985 to 2011 and examines the state's corresponding rationales for these decisions. Not surprisingly, the rationales lacked any precedent or transparency in the decision making process. This article concludes with suggestions for a comprehensive statute that addresses monetary and non-monetary consequences of wrongful conviction.

1. INTRODUCTION

   Wrongful convictions occur in Australia as they do in other common law jurisdictions such as the United States, Canada, New Zealand, and the United Kingdom. (1) In Australia, there is currently no reliable national data that provides an estimate of the prevalence of wrongful convictions, (2) though the causal factors in common law jurisdictions are the same. (3) U.S. studies estimate the imprisonment of innocent individuals to fall within 0.5% to 5% of felony cases. (4) This figure is considered a conservative estimate, since it is difficult to prove innocence unless errors are exposed post-conviction, such as through confessions by the perpetrator or forensic DNA testing of evidence. (5) Nonetheless, wrongful convictions are an international problem whose remedy must include preventing future wrongful convictions, identifying wrongfully convicted and incarcerated persons, and a means of addressing the consequences of the conviction and the exoneree's successful reintegration back into the community.

   To date, the literature on the study of Australian exonerees has consisted mostly of the investigation of the causal factors of wrongful conviction (6) and the role of the innocence projects in the correction of wrongful conviction (7) with little attention paid to post-exoneration consequences and remedies. (8) Wrongfully convicted individuals often undergo emotional, psychological, physical, and social challenges (9) and seek compensation for injuries and loss of liberty. (10) Without compensation legislation, the recourses available to exonerees in Australia are to apply for ex gratia awards, file a tort claim against liable parties, or propose an individualized compensation bill through Parliament. (11) Ex gratia payments are a viable option for most exonerees who do not have the resources or political influence to pursue private lawsuits or draft a personalized bill. (12) However, without guidelines for decision-makers or transparency in the process of awarding and allocating funds, ex gratia awards are often criticized as inadequate and arbitrary. (13)

   This article attempts to address the gap in the literature by examining ex gratia cases and the state's corresponding rationale to justify these outcomes in the Australian context. If ex gratia payments are an established and favored method of receiving compensation, then understanding the reasons and patterns for their awards and denials would be of vital importance to exonerees. Moreover, if ex gratia payments are truly arbitrary, then this calls into question the fairness of the justice system and the adequacy of Australia's compensation remedies for the wrongfully convicted. This article reviews the consequences of wrongful conviction and incarceration, the reasons that exonerees might seek compensation after release from prison, and the options available to exonerees in Australia. The analysis provides an overview of known wrongful convictions in Australia where exonerees have filed an ex gratia claim and identifies salient factors in cases that are awarded and denied payments. This article also analyzes statements made by government officials who justify ex gratia decisions. The findings suggest that the reasons for allocating ex gratia payments articulated by the state may not necessarily correspond with the factors on which they base their decisions. Given the fairness and adequacy issues surrounding the ex gratia process, this article concludes by recommending that Australia adopt a compensation statute which tailors payments and aftercare services to exonerees' identified needs for their successful reintegration into society.

2. CONSEQUENCES OF WRONGFUL CONVICTION--INCALCULABLE LOSS

   The consequences of wrongful conviction can affect an individual's ability to successfully reintegrate into society upon release. (14) Long term incarceration can lead to negative health effects such as depression, post traumatic stress disorder, alcohol and substance dependence, and "enduring personality change[s]" that are similar to those experienced after a catastrophic event, such as feelings of emptiness, hopelessness, estrangement, and symptoms of paranoia. (15) Both ex-offenders and exonerees experience the same post-release difficulties in finding housing, employment, and medical attention, which are exacerbated by the lack of financial support they receive when released from prison. (16) After a long period of incarceration, former inmates and exonerees must cope with the challenges of reuniting with family who may reject them, the passing of a loved one while incarcerated, or the loss of time that may influence interactions with their spouses, children, siblings, or friends. (17) They may also experience difficulty with coping with cultural changes and ordinary tasks due to changes in technology in the home, workplace, and social environment that may affect everyday living. (18)

   While former inmates may experience similar psychological, medical, financial, and everyday challenges as do exonerees, the exonerees' innocence adds an unparalleled dimension to their experiences. Wrongfully convicted individuals tend to serve longer sentences in prison because of their inability to participate in behavior and rehabilitation programs that require them to take accountability for their crimes and admit guilt. (19) Maintaining innocence while incarcerated proves to be, as Denov and Campbell describe, a "burden of innocence" by attracting the attention of the prison administration as a threat to recidivism. (20) The continual affirmation of their innocence also preoccupies their time while incarcerated through researching the facts of their cases and soliciting assistance from legal officials, and prison and public administrators for information or assistance with their ultimate exoneration. (21)

   Upon release, exonerees are generally not eligible for government services, which are geared to support the reintegration of parolees into society. (22) These services include housing assistance and placement, employment training and work release programs, and medical services to address psychological, emotional, or health related issues that have resulted from incarceration. (23) Rather, wrongfully convicted individuals are often released abruptly into the community once their exoneration is finalized without financial support or access to public services for housing, employment, or medical assistance. (24)

   Exonerees face additional burdens after their release from prison, because they receive little to no guidance or financial support. (25) For example, the expungement of their criminal record is not automatic and may require costly legal assistance. (26) Even when records are expunged, exonerees face difficulties re-entering the workforce with long unexplained gaps in their work histories. (27) Likewise, if exonerees choose to seek financial compensation for their erroneous conviction, a pardon, or wish to file a lawsuit against individuals whose negligence, malfeasance, or misconduct contributed to the conviction, this will require legal assistance and financial resources which rests wholly on the exoneree. (28)

   Another unique challenge that wrongfully convicted individuals may face is unwanted notoriety or continued apprehension in public, especially if the crimes received media attention or if there are community members who dispute their innocence. (29) This may lead to stigmatization, ostracism, or hostility, which detracts from and hinders their successful reintegration. (30) The anger and bitterness for lost time while incarcerated is often targeted at the state (31) and exonerees must cope with these feelings as a result of wrongdoings or misconduct by lawyers, police, or state officials. It is not uncommon for exonerees to seek some form of government apology beyond the clearing of their convictions and, by refusing to acknowledge its responsibility in the wrongful conviction, the state further harms and continues the victimization of the exoneree. (32)

   Taken together, it is clear that after exoneration, individuals need assistance to address and repair the psychological, physical, social, and financial injury that they suffer as a direct result of their wrongful convictions and imprisonment. Exonerees can seek compensation for these aftereffects in the forms of financial compensation, access to community services and reintegration programs, a state apology for their role in contributing to the exoneree's misfortune, or the state's public acknowledgment of failures of a justice system that convicts innocent persons. (33)

3. COMPENSATING THE...