For the Wrongfully Convicted, Justice Can Be Hard to Come By

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In a perfect world, the U.S. justice system would function exactly as it is supposed to: A person who has committed a crime is found guilty and sentenced, while a person who is not guilty is acquitted by a jury of their peers and returns to their normal life.

But of course, this isn’t a perfect world. 

Juries and prosecutors’ offices and police departments and witnesses all are human — and humans can make mistakes.

When this system fails an innocent person and they are wrongfully convicted, it can cost them their job, reputation, income and, in the worst-case scenario, years of their life.

And while they are sometimes lucky enough to be able to free themselves from that situation through the courts, none of them can get that time back — and some can’t even be compensated for it.

Oct. 2, 2021, was the eighth annual Wrongful Conviction Day, which was started by the Innocence Network to raise awareness of the causes and remedies of wrongful convictions.

Are wrongful convictions common?

While there is obviously no way to know how many people are wrongfully convicted each year, there is data available on how many people are exonerated annually.

According to the National Registry of Exonerations’ annual report, published March 30, 2021, 129 people were exonerated in 2020. 

About half of them — 64 — had been found guilty of homicide.

Thirteen had been wrongly convicted of sexual assaults; 17 for other violent crimes, such as robbery and assault; and 35 for nonviolent offenses, such as drug crimes and theft.

Exonerees in 2020 lost a total of 1,737 years or an average of 13.4 years per person, according to the report.

The National Registry of Exonerations says there have been a total of 2,737 exonerations from  1989 through 2020, adding up to thousands of years of innocent people’s lives lost, while the true perpetrator goes unpunished.

Contributing factors

In some cases, a defendant who is not guilty of a crime but convicted anyway was simply in the wrong place at the wrong time.

However, there are other contributing factors to wrongful convictions.

Official misconduct was known to be a factor in 87 of the 129 exonerations in 2020, including 80 percent of the murder cases, according to the National Registry of Exonerations.

Mistaken witness identification played a role in 30 of the exonerations in 2020. 

Thirteen of the cases involved false confessions.

Perjury or false accusations were found to be a factor in 103 of the cases in 2020, while forensic evidence that was false or misleading was found in 38.

A year-end report from the Death Penalty Information Center indicates six death-row inmates were exonerated last year, bringing that total to 173.

In a 2018 opinion piece for the Chicago Tribune, lawyer and author John Grisham wrote it’s nearly impossible for an innocent person in prison to be released.

Grisham, who is also on the board of directors for the Innocence Project, says the organization has aided in the release of 349 people — including 20 on death row — over the last 25 years thanks to DNA testing. 

According to Grisham, over 2,000 total people were exonerated in the U.S. during that same period.

Federal compensation

At the federal level, Congress passed the Justice for All Act in 2004.

The act, passed with bipartisan support, according to Pew, guarantees $50,000 for each year spent in prison for those who are exonerated of federal crimes; that figure doubles to $100,000 for each year an innocent person spends on death row.

The National Registry of Wrongful Convictions, for a federal exoneree to receive compensation, they must meet certain eligibility requirements.

First, they must receive a pardon for innocence or have their conviction reversed or set aside on the grounds they are not guilty, then found not guilty at a new trial or a rehearing.

The U.S. Court of Federal Claims makes the decision on whether an exoneree will be compensated.

States with compensation

Thirty-five states, along with the District of Columbia, have laws on the books that provide for compensation in cases where a person convicted of a crime is exonerated.

The majority of those states are in line with federal law, providing $50,000 or more per year of imprisonment, according to Innocence Project data. Washington, D.C., offers the most, at $200,000 for each year of wrongful imprisonment.

Nevada has a sliding scale, offering $50,000 per year of wrongful incarceration for up to nine years; $75,000 per year for 10 to 20 years; and $100,000 per year for 20 or more years.

States with these statutes say claimants must meet a reasonable standard of proving their eligibility, establishing “by a preponderance of evidence” that they did not commit the crime, the Innocence Project says.

In 22 of the 35 states with compensation laws, the courts adjudicate claims through the courts. Others designate state boards or commissions to decide on the claims.

As protection for taxpayers, some states also require exonerees who receive compensation at the state level and go on to win federal civil rights lawsuits or settlements to reimburse the state, according to the Innocence Project.

On the flip side, in some cases, if an exoneree first wins their federal civil rights lawsuit then attempts to also get compensation from the state, they would be entitled only to an amount from the state subtracted from any civil awards.

Five states — Colorado, Kansas, Nevada, New Jersey and Ohio — have this offset provision.

A few states provide additional compensation for wrongfully convicted people who spent time on death row or had post-release supervision, according to the Innocence Project.

Colorado and Washington each provide an additional $50,000 per year for death-row exonerees.

Colorado, Kansas, Minnesota and Washington each provide an additional $25,000 for each year an exoneree spent on probation or parole or on the sex offender registry.

In March 2021, Idaho’s governor signed into law a bill that includes $62,000 for each year the wrongfully convicted person was in prison or $75,000 for each year they spent on death row, the Innocence Project reported.

Montana also adopted a bill in 2021 allowing for wrongful conviction compensation — but some proponents were not happy with last-minute changes requested by the governor, according to the Missoula Current.

House Bill 92 allows $60,000 for each year of wrongful imprisonment, with an additional $25,000 for each additional year the person spent on parole or probation, or registered as a sex offender.

However, thanks to an amendatory veto by Governor Greg Gianforte, anyone pursuing a claim under HB92 must forfeit their right to bring a civil-rights lawsuit against state or local prosecutors or seek other damages through the courts. 

The governor also added to the bill that the county that prosecuted the wrongfully convicted individual is responsible for paying 75 percent of the award. Originally, the state was responsible for the entire payment.

Montana already had a statute in place regarding compensation for the wrongfully convicted. However, the state offered only a program to help exonerees access post-secondary education, the Missoulian reported, and lawmakers say the program had never been funded or used.

Rhode Island is the most recent state to add a wrongful conviction compensation law.

Governor Dan McKee signed a bill Sept. 16, 2021, to provide exonerees with $50,000 for each year spent in prison, or $137 for every day they were incarcerated if it was under a year, the Brown Daily Herald reported.

Rhode Island exonerees also can seek up to $15,000 in damages for attorneys’ fees, housing, reintegration services, mental and physical health care, and more.

In a press release, McKee said the “anger and suffering” the wrongfully convicted face is hard to imagine, adding that the state owed them “the compensation they deserve.”

“Although it can never give them back the time that they lost, we hope that it can help them to get back on the track to a successful life,” he said.

Nineteen states also provide non-monetary compensation, which can be of great help to an inmate re-entering society.

Fourteen states provide tuition assistance, while nine provide help with medical expenses, according to the Innocence Project.

Additional help in some states comes in the form of assistance with job search and housing, counseling and re-entry services.

However, only one state — California — provides exonerees with assistance immediately upon exoneration.

States without compensation

In states that do not have laws on the books regarding compensation for those who are wrongfully convicted and imprisoned, exonerees must go through the courts to either seek compensation or persuade state legislatures to pass a special appropriation so they can be paid, according to Pew Trusts.

Both of those options leave something to be desired. 

As Pew points out, lawsuits take a lot of time and money and can be difficult to win, and there’s no guarantee of the outcome when trying to persuade a legislature.

According to the Innocence Project, there are 13 states that do not provide compensation to exonerees: Alaska, Arizona, Arkansas, Delaware, Georgia, Kentucky, New Mexico, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota and Wyoming.

In some states previous attempts at establishing wrongful conviction compensation have failed.

For example, the issue failed to make the ballot in Arizona in 2012 after the petition failed to get enough signatures.

The proposal would have entitled those wrongfully convicted of a crime to receive $1,000 per day they were incarcerated in connection with conviction.

Beyond 2021

Some strides were made for the wrongfully convicted during 2021, but more changes are on the way next year.

A bill introduced for the 2022 legislative session in Florida, like previous similar bills, would increase the window for a person to seek compensation from 90 days to two years, according to Florida Politics.

The bill also would strike down what is called the “Clean Hands” provision. Under current Florida law, a person is precluded from seeking compensation if they have had multiple nonviolent felonies.

Of the states with wrongful conviction compensation laws, Florida stands alone in barring such compensation because of unrelated crimes, Florida Politics reported.

In Louisiana, beginning in July 2022, exonerees will be eligible for $40,000 per year of wrongful imprisonment; currently they are only eligible for $25,000 per year, according to The Associated Press.

The compensation is capped at $400,000 over 10 years, or $250,000 if the person opts for a lump sum in lieu of annual payments.

Exonerees who had received compensation since September 2005 will be eligible to seek supplemental compensation that reflects the new amount. 

Petitions for the supplemental compensation must be filed by July 1, 2023.

Whether more states will pass legislation to compensate the wrongfully convicted remains to be seen.

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