The civil justice system exists to punish wrongdoers, deter wrongdoing, and to compensate victims for the harms committed against them. But what happens when the harm committed is wrongful incarceration – how do you compensate a life spent in prison?
Glenn Ford was arrested in 1983 for a murder he did not commit. His trial lasted seven days. There were no eyewitnesses, there was no murder weapon, and he was defended by a team of court-appointed lawyers with little experience. The jury sentenced him to death.
Ford was released last year, after an informant came to police with new information. The prosecutor who tried him has since admitted stacking the jury against Ford, who is black, with only white jurors. Granted, it is far from uncommon for lawyers to select jurors likely to favor their side; Ford’s defense team likely did not realize what has happening. Nor did they know about the confidential informants who told detectives about the actual killers. Prosecutors did not share this exculpatory evidence, as they are required to by law.
When Ford was freed, he had $20 on a debit card and 24 cents in his prison account. In Louisiana, where he lives and was incarcerated, exonerees can claim up to $330,000 in compensation from the state. A judge denied Ford’s petition for compensation on the grounds that he might have known the identity of the true killer, and thus was not “completely innocent.”
There is little justice for the wrongfully incarcerated.
In a recent gut-wrenching New Yorker piece, Ariel Levy exposes the sorry state of restitution for exonerated convicts in the United States. She notes that the idea of compensation dates to a 1932 book by a Yale law professor, Edwin Borchard, who wrote, “When it is discovered after conviction that the wrong man was condemned, the least the State can do to right this essentially irreparable injury is to reimburse the innocent victim, by an appropriate indemnity for the loss and damage suffered”.
However, few states gave serious thought to what that “appropriate indemnity” might look like until the first DNA exoneration in 1989. Even today, there is no standardized “value of lost time”:
Missouri gives exonerees fifty dollars a day for time served, California twice that much. Massachusetts caps total compensation at half a million dollars. In Maine, the limit is three hundred thousand; in Florida, it’s two million. The variation is largely arbitrary. “If there’s a logic to it, I haven’t seen it,” Robert J. Norris, a researcher at SUNY Albany who has studied compensation statutes, told me. In Wisconsin, no matter how long an exoneree has served, the state will pay no more than twenty-five thousand dollars—the same figure that its legislators established in 1979. “They just never changed it,” Norris said. “They even amended their statute in 1987, but they didn’t change the amount.” Most states levy taxes on payment. Twenty states have no compensation statutes at all.
It is a shocking and inexcusable failure of justice. Levy writes that 1,575 convicts have been exonerated in the US since 1989. For those that seek civil compensation, the barriers are high. To file a suit, plaintiffs need evidence supporting their claim; the best evidence is usually law enforcement records that demonstrate misconduct. But plaintiffs cannot access these records until they have filed a case.
For those who successfully take the government to trial and win, victory is rarely the end of the road. Levy’s piece centers on a man who was convicted on false evidence and unreliable testimony, serving eighteen years. In 2010 he received a $2.2 settlement from the State of New York, and gave most of that to lawyers and his mother. Four years later, – last April – he won $18 million in damages from Nassau County, which is appealing the verdict.
“The money will likely take years to materialize,” writes Levy, “if it comes at all.”
Even when plaintiffs win, justice usually fails to deter further injustice:
It is taxpayers, not police or prosecutors, who bear the costs of litigation and compensation. Prosecutors enjoy almost total immunity in cases of misconduct, even if they deliberately withhold exculpatory evidence from a jury… And, unless there is a civil-rights trial, there is no examination of the police practices that contributed to a wrongful conviction: it is seen simply as collateral damage in the fight against crime.
An excellent journalist, Levy keeps just shy of making any explicit criticism of US policy. Luckily we are not journalists and need not be so shy. This is an unconscionable flaw in our legal system. It must change.
At the very least, there should be across all states a standard for compensation. Texas offers a good model, writes Levy: “A person who is exonerated in Texas has access to health insurance, free tuition at any state university, and a year of free counselling. He is eligible for a monthly annuity, as well as a payout of eighty thousand dollars for each year of incarceration, without having to file suit.”
People who are harmed, through no fault of their own, deserve compensation. That’s why we have a civil justice system. But imagine if exonerees didn’t even have to go through the painful rigamarole of a lawsuit, didn’t have to relive the tragedies that ruined their lives. Victims deserve better than revictimization.
Unfortunately, these problems are unlikely to resolve soon. When police and prosecutors are committed to getting convictions at all costs, wrongful incarcerations are just a bug in the system. There’s no wealthy PAC lobbying on behalf of the 1,575 exonerees and the countless still unjustly imprisoned. Convicts don’t have powerful unions. They don’t have the backing of state and federal governments. It’s a rare few who are willing to consider that convicts have any rights at all.
Levy mentions one exoneree, Milton Scarborough, who was convicted when he was 37. Prosecutors made their case on the testimony of three drug addicts whom investigators gave “leniency in exchange for false testimony.” He was released in 2013 at age 75.
“The state,” she writes, “never formally acknowledged Scarborough’s innocence; instead, it offered a deal, in which he agreed to drop his appeals in exchange for having his sentence commuted. As a result, he will never receive any compensation.”
Photo credit: Justin Wolfe
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