What Is Innocence Worth?

lorish innocence FLAT

In its recent Nelson v. Colorado decision, the Supreme Court affirmed what might have seemed to require no formal affirmation—namely, that a person whose criminal conviction is overturned on appeal is entitled to the return of any fees, court costs, or restitution paid to the state as a result of the conviction. Previously, the state of Colorado required an exonerated defendant to file a separate civil suit and prove actual innocence by clear and convincing evidence before funds would be repaid. Having a conviction overturned on a mere legal technicality would not suffice for financial recovery. The central question in the case—which was decided six to one in favor of the petitioners, with Justice Clarence Thomas dissenting—concerned due process.

While it was notable that the Supreme Court took up such a seemingly self-evident case, the Court did not address the question of compensation for periods of wrongful incarceration. Justice Ginsburg, writing for the majority, explained that the “[petitioners] seek restoration of funds they paid to the State, not compensation for temporary deprivation of those funds. Petitioners seek only their money back, not interest on those funds for the period the funds were in the State’s custody.” Justice Ginsburg continued: “Just as the restoration of liberty on reversal of a conviction is not compensation, neither is the return of money taken by the State on account of the conviction.” She made it clear what compensation is and what it is not: While compensation may be the return of something wrongfully taken, it is not necessarily compensation to be released from prison in which one was held for no lawful reason in the first place. Compensation is something more—an award for loss, suffering, or an injury.

Under what circumstances then can individuals receive compensation for the years of wrongful incarceration after the reversal of a conviction? The Innocence Project, a nonprofit that uses DNA testing to exonerate convicted people, notes that the federal government, the District of Columbia, and thirty-two states have some form of compensation statute, but there are often strings attached, such as the exact restrictions the Supreme Court disallowed in the Colorado statute. These restrictions consist of requiring a defendant to file a suit proving his innocence or showing, at minimum, that he did not “contribute” to the wrongful conviction by falsely confessing or pleading guilty to avoid a longer sentence (something that happens with some regularity). Many other state statues also prohibit any financial recovery if a defendant had a conviction for an unrelated felony. A 2012 University of Michigan list of state statutes and restrictions on recovery illustrates some of the ways that monetary relief is limited. For example, in Missouri and Montana, only individuals exonerated through DNA testing are eligible. In New Hampshire, the maximum amount the state will pay out is $20,000, regardless of the number of years of wrongful incarceration.

After Nelson v. Colorado, individuals who have had convictions overturned on appeal should receive their money back, although the decision does not remedy the difficult process by which they may make claims for compensation, or for lost wages or other collateral consequences incurred due to incarceration. And the process to receive any compensation (as contrasted with the return of funds paid) is available only for those who are actually innocent of their offenses—a small group despite significant media attention. A helpful overview of technical innocence versus actual innocence is here. The Innocence Project, now celebrating its twenty-fifth anniversary of post-conviction DNA exonerations, reports only 349 DNA exonerations in thirty-seven states.

But what about individuals who are not innocent of their convictions, but are serving a sentence in excess of what they should be because of legal errors, changes in sentencing law, or changes in how society views the abuse of illegal drugs (should that have been their offense)? Because they are not actually innocent, they must usually raise their case—not for monetary compensation but for freedom—within the short time period for appeal, or lose the opportunity forever. For example, it is surprisingly uncommon for an error in calculating a defendant’s sentencing guideline to result in a sentence longer than it should have been, but unless the error is caught within one year of the judgment, there is rarely recourse.

During his time in office, President Obama granted executive clemency to 1,715 federal prisoners, freeing or reducing the sentences of the highest number of prisoners since President Truman. To qualify for clemency under the Obama administration, an offender had to show that if she was sentenced for the exact same crime today, she would have received a lower sentence because of changes to drug laws and the way that prosecutors apply mandatory minimums, as well as many other factors (that the offender was non-violent, had served at least ten years, had no significant criminal history, etc). More than 30,000 petitions were submitted. Many of these 1,715 were immediately released from prison, because had already served more time than they should have. They were given freedom but no compensation and, in most cases, were released so quickly that they were unable to take part in the halfway house program that helps federal inmates transition to life after release.

In addition, on November 1, 2015, 6,000 federal inmates were released after the federal sentencing commission changed sentencing calculation guidelines in an effort to reduce prison costs and overcrowding. Although some 40,000 federal prisoners were eligible for some reduction in their sentences, the 6,000 released on November 1 had already served more time than called for under their new and reduced sentences. Many thousands of offenders who finished their period of incarceration before their sentences could be adjusted did not benefit at all from the change, nor did they receive any compensation for serving extra time.

Of course, there is one other significant group that generally receives nothing: It consists of the uncounted individuals held without bond while waiting for trial. One such is the Florida man who spent 1,140 days in jail awaiting murder charges before prosecutors finally admitted the case against him was weak. He was released on bond earlier this month and is likely to be cleared all charges. Or Kalief Browder who spent three years confined at Rikers Island, persisting in his claim of innocence until the charges against him (stealing a backpack) were finally dropped. He was so traumatized that he committed suicide two years after his release.

For the foreseeable future, there will likely be no mechanism that provides compensation for overserving a sentence. For example, one of my clients recently received a court order releasing him from incarceration, more than fifteen years into his twenty-two-year sentence. This case involved a debate about whether or not he had prior offenses that should have triggered a federal mandatory minimum of fifteen years with a statutory maximum of life in prison. After rounds of appeals, the courts agreed that the most time he should have received under the law was ten years, meaning he had served five more years than current sentencing law required. About 1,200 federal inmates have had their sentences reduced or were immediately released because of the same Supreme Court case that allowed my client to bring his appeal. None were given anything more than the sense that they were among the lucky ones.

Lisa Lorish is an assistant federal public defender for the Western District of Virginia and a graduate of the University of Virginia School of Law.

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