Putting a dollar value on wrongful jail time

As more prisoners are exonerated by DNA tests, states consider what, if anything, they are owed.

The "Get Out of Jail Free" card is one of the most prized acquisitions in the game Monopoly. But in real life, a growing number of falsely imprisoned individuals - exonerated and released largely on the basis of DNA evidence - want something more: to get out of jail with compensation.

Increasingly, state legislatures are heeding their pleas. In May, Oklahoma, Texas, and Alabama passed laws that either allowed for state reparations to the wrongly imprisoned or raised the cap on the maximum payout.

Public sympathy for such individuals, particularly in the wake of high-profile news stories, tends to be high. But some critics say that awarding compensation is tantamount to admitting a state's culpability. Even those who support the idea of reparations find themselves faced with a Solomonic challenge: how to put a price tag on unwarranted years in jail.

"I tell them, go to a maximum-security prison, imagine yourself in there, and decide just what you'd be willing to be paid an hour or a week to be there, to not see your kids, to not attend the funerals of your grandparents or the weddings of your brothers and sisters," says Kevin Green, an exonerated prisoner who has testified at hearings on compensation bills.

Mr. Green was convicted by a California court in 1980 of raping and beating his nine-months-pregnant wife and causing the death of the unborn child. Sixteen years later, he was released from prison when a serial killer confessed and DNA testing proved his guilt. A 1999 California law provided him with $100 per day for every day he was incarcerated in two of the state's most notorious prisons. Soon thereafter, the law was broadened to include all exonerated prisoners.

High-profile cases

Both the Oklahoma and Texas bills were also prompted by recent cases. In Oklahoma, Jeff Pierce was released last month after serving 15 years of a 65-year sentence for a rape that DNA showed he did not commit. And in Texas, seven individuals have been exonerated in the past two years. One of them, Anthony Robinson, spent 10 years in prison on a rape charge of which DNA evidence cleared him. He once aspired to be a lawyer; now, with a prison record, he works as a laborer.

In all, 16 states have compensation programs for exonerated prisoners, though a handful, like Wisconsin's, date to the 1970s and have low caps. In the Badger State, a prisoner can collect no more than $25,000, plus lawyer's fees.

Most states cap compensation at no more than $300,000. Two - New York and West Virginia - have no limit. Exonerated prisoners and proponents of compensation laws decry the often-stingy payouts, saying they barely cover lost wages, much less intangibles like lost freedom or being falsely labeled a killer.

Indeed, the "market value" of lost time in jail varies wildly, at least as determined by a jury rather than state legislatures. In Maryland, three youths wrongfully detained for just 10 minutes by a security guard at a retail store sued. One of the youths, who was forced to remove his shirt, was awarded $850,000 for defamation and false imprisonment.

Of course, those are judgments in civil suits and involve punitive damages. In exoneration cases, where the mistakes often involve well-meaning witnesses rather than police or prosecutorial wrongdoing, it is harder to find someone to sue. States themselves generally enjoy sovereign immunity.

At present, 34 states have no compensation laws at all. More than two-thirds of the dozens of prisoners exonerated in the past decade have received nothing, says Rob Warden, executive director of the Center for Wrongful Conviction at Northwestern University in Evanston, Ill.

Those who oppose compensation do so for a variety of reasons. Some argue that such bills suggest a state is at fault, when, in fact, a jury determined the person falsely convicted was guilty beyond a reasonable doubt. Other legislators look beyond the clear-cut cases that make headlines and fear such laws will be leveraged by prisoners freed merely on a technicality. Sometimes opposition boils down to simple fear of being labeled soft on crime. "We don't have a perfect system," says Oklahoma state legislator William Graves (R), who voted against the compensation bill. "But does that mean the state has to pay money every time a jury finds the wrong person guilty?"

A long and tortuous process

Even in states that offer compensation, those exonerated can't expect to be met by the warden with a check as they walk out the prison gate. When a judge vacates a conviction because of DNA evidence, it is not necessarily the legal equivalent of innocence. In many states, the primary way of achieving "factual innocence" is a gubernatorial pardon.

And earning a pardon can be a tortuous ordeal. Because of his resemblance to a composite drawing, Lesly Jean, a former marine, was arrested for rape in 1982 while visiting a doughnut shop near the victim's home. Convicted that year on the strength of testimony by two witnesses - despite testimony by four others who placed him at a nearby Marine base at the time of the rape - he spent nine years in prison before DNA tests proved his innocence.

In February of this year, North Carolina Gov. Mike Easley finally issued Mr. Jean a full pardon - 11 years after he left prison. Jean hopes the pardon will lead to $150,000 in compensation from the state, the maximum allowed there under current law.

Mistakes in the justice system are going to happen, says Adele Bernhard, a law professor at Pace University in White Plains, N.Y., and an authority on compensation statutes. But, "when we do discover an error, the people who have suffered from it should be compensated. It seems to me, that's only fair."

(c) Copyright 2001. The Christian Science Monitor

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