What Price Freedom (Lost)?

You spend years, even decades, in prison, knowing you’re innocent. Your conviction locks up your life and smothers your senses and ambitions. The quality of your life is limited—but you’re innocent!

We’ve all seen reports about inmates’ being released from prison after exhaustive appeals and serving long stretches in confinement. Most are DNA exonerations, based on science, that rip through veils of falsehoods with verifiable evidence.

There are many causes of wrongful convictions, all equally devastating, and they highlight how the criminal justice system can be wonky. The University of Michigan Law School, in conjunction with the Michigan Innocence Clinic, has identified common causes of wrongful convictions:

• Eyewitness Misidentification Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound.
• Junk Science Many forensic testing methods have been applied with little or no scientific validation and with inadequate assessments of their significance or reliability. As a result, forensic analysts sometimes testify in cases without a proper scientific basis for their findings. And in some cases forensic analysts have engaged in misconduct.
• False Confessions In many cases, innocent defendants make incriminating statements, deliver outright confessions, or plead guilty. Regardless of the age or [mental] capacity, . . . what they often have in common is a decision—at some point during the interrogation process—that confessing will be more beneficial to them than continuing to maintain their innocence.
• Government Misconduct In some cases, government officials take steps to ensure that a defendant is convicted despite weak evidence or even clear proof of innocence.
• Snitches Often, statements from people with incentives to testify—particularly incentives that are not disclosed to the jury—are the central evidence in convicting an innocent person. People have been wrongfully convicted in cases in which snitches are paid to testify or receive favors in return for their testimony.
• Bad Lawyering The failure of overworked lawyers to investigate, call witnesses, or prepare for trial has led to the conviction of innocent people.

According to the Michigan Innocence Project, “those proven to have been wrongfully convicted through post-conviction DNA testing spend, on average, more than fourteen years behind bars.” I have found no data about the average length of time people exonerated by non-DNA evidence spend in prison; I have no doubt it mirrors the DNA exonerations. And, keep in mind, this data comes only from those cases that have been through the appellate filter of the judicial system; most inmates do not have the funds, contacts, legal sophistication, or emotional strength to wind through the legal labyrinth to challenge their convictions.

What Price Freedom?

The name of this post is attributed to the brilliant African American writer and social critic James Baldwin, whose essay—“What Price Freedom?”—appears in an anthology of his writings, The Cross of Redemption: Uncollected Writings. Baldwin, known for his unremitting, no-holds-barred views on racism, often impugned the prison system with his writing. A quote from “What Price Freedom?” is metaphorically telling: “Now, if I am imprisoned in the ghetto, somebody is keeping me there. I can’t walk out because of the warden. There are two people you always find in prison: the man in the prison and the man who is keeping him there.” In Baldwin’s world, the man that keeps him in prison is the deep, dark systemic racism in this country, which creates a revolving door for African Americans that we cannot afford to turn our backs on anymore.

This Far and No Further

One sentence from another essay in Baldwin’s anthology, “This Far and No Further,” struck me by its simplistic, yet complex connotation: “All that we can really claim to know about the Prisoner is that he or she is a human being, like ourselves, who has been caught, who has been incarcerated” (emphasis in the original). Yes, we are all humans, and yes, many but not all of us are caught for our crimes. Likewise, not all incarcerated humans were legitimately caught, but some find themselves in a judicial flypaper trap of a wrongful conviction.

What’s the remedy for a state’s wrongfully convicting a citizen? Clocks cannot be turned back. Years and decades gone by don’t provide a second chance to watch children grow up or to be productive and supportive of family. Careers and career opportunities are lost when prison doors slam.

Compensation for Wrongful Conviction

Compensation for wrongfully imprisoned people varies widely in the United States. Remarkably, in eighteen states, there is no opportunity for compensation at all. This same state-by-state disparity, like that of voting rights for previously incarcerated people, is part of a pattern of injustice that needs immediate civil rights prison reform. For a discussion of the voting law disparity between states, see my post Ex-Cons Can’t Vote, Can They?

The states that do provide the opportunity for compensation often have complicated, problematic, and daunting Catch-22 conditions that can skew an applicant’s success of being compensated for his or her lost time.

Here’s a sample of state statutes from wrongful conviction attorneys Cooper and Elliott’s website:

• Alabama: $50,000 per year of wrongful imprisonment. The Committee on Compensation for Wrongful Incarceration can recommend amounts above $50,000 but the excess must be approved by the legislature.
• California: $140 per day of wrongful imprisonment. [That equals $51,100 per year.]
• Colorado: $70,000 per year of wrongful imprisonment, plus $50,000 for each year served while sentenced to execution, plus $25,000 for each year served on parole or probation or on a sex registry.
• Iowa: $50 per day of wrongful imprisonment [18,250 per year]; lost wages he/she would have received, up to $25,000 per year.
• Maryland: Board of Public Works determines compensation packages based on “actual damages,” plus an amount for “financial or other appropriate counseling.”
• New York: The court of claims determines an amount that’s fair. [How’s that for vague and ambiguous?]
• Ohio: $43,330 per year of imprisonment, plus any lost wages and attorney fees.
• Texas: $80,000 per year of imprisonment, plus $25,000 per year for any years spent on parole or as a registered sex offender. Also, tuition for up to 120 credit hours.
• West Virginia: Discretion of the court.

The states that offer no compensation are Alaska, Arizona, Arkansas, Delaware, Georgia, Idaho, Indiana, Kansas, Kentucky, Nevada, New Mexico, North Dakota, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, and Wyoming.

Federal law provides blanket wrongful conviction compensation for federal crimes allegedly committed in any state. People who are exonerated for their crimes may receive up to $50,000 for each year of wrongful incarceration. They may also receive an additional $50,000 for every year spent awaiting execution on death row.

In Review

The data clearly suggests a tragic flaw in compensation to victims of wrongful convictions. Is time lost by a person wrongfully convicted worth less for a person in Arizona and the other opt-out states? How can this be?

How can it be that a person wrongfully convicted of a federal crime, in any state, can be a potential benefactor of federal legislation that provides $50,000 for each year that he or she is wrongfully incarcerated?

Where’s the humane rationale for this? There is none. How is it that in New Hampshire stolen time is worth a total of $20,000 for an indefinite number of years incarcerated, while in the neighboring state of Vermont, stolen time can provide between $30,000 and $60,000 per year of imprisonment, plus lost wages, up to ten years of health coverage, and more?

Where’s the outrage over this unequal valuation of human beings’ stolen time?

States should be regulated by federal law. This is a call to action for federal legislation that standardizes the benefits and supersedes states’ conflicting laws on the issue of compensating wrongfully convicted persons. We need something similar to the Civil Rights Act, codified in 42.U.S.Code 1983, which is an umbrella federal law that applies to all states, including their inmates.

I welcome your thoughts and suggestions.

Image courtesy of 123rf