Monday, December 12, 2011

Lawmakers Seek to Compensate the Wrongfully Imprisoned

The Pennyslvania Law Weekly
December 13, 2011

A bill has been introduced in the state Senate that would provide $50,000 a year for each year of incarceration for those wrongfully convicted and confined in a Pennsylvania prison.

Senate Bill 1338 provides that all claims of wrongful conviction and imprisonment shall be heard by the Commonwealth Court. The district attorney or attorney general may offer evidence and argue in opposition to a claim for damages, but S.B. 1338 specifically suggests a level of informality with regard to the proceedings. The court may order damages of a minimum of $50,000 for each year of incarceration, as adjusted annually to account for inflation and prorated for partial years served.

The new law would provide that a claimant before the Commonwealth Court would have to prove, by clear and convincing evidence, actual innocence. A claimant can establish actual innocence in one of three ways: (1) being pardoned by the governor because the crime was not committed or if a crime was committed the claimant was not responsible; (2) the conviction was reversed or vacated on grounds consistent with innocence; or (3) a new trial was ordered, and the claimant was found not guilty or was not retried.

Senate Bill 1338's principal sponsor is Senate Judiciary Committee Chairman Stewart Greenleaf. The wrongful conviction compensation plan is part of a package of reforms proposed by the Advisory Committee on Wrongful Convictions. The committee was created in 2006 and the long-awaited report was issued in September detailing, among other things, compensation for the wrongfully convicted.

The advisory committee was not without controversy. The report was far from unanimous and the law enforcement and victim representatives of the committee issued their own independent report.

The independent report took issue with some of the terms included in the compensation portion of S.B. 1338. First, what does "grounds consistent with actual innocence" mean? The compensation bill provides that actual innocence may be proven before the Commonwealth Court if a claimant's conviction was reversed on grounds consistent with innocence. The independent report suggests that the standard is "so broad as to cover nearly all appellate reversals."

The independent report also took exception with the idea that an acquittal after a retrial or the decision not to retry is evidence of actual innocence. The independent report argues that the U.S. Supreme Court has held that an acquittal "does not prove that the defendant is innocent," Dowling v. United States , 493 U.S. 342 (1990).

The independent report succinctly pointed out that the burden of proof in criminal cases requires proving guilt beyond a reasonable doubt. The Supreme Court has made it clear that a jury must acquit "someone who is probably guilty but whose guilt has not been established beyond a reasonable doubt," Gregg v. Georgia , 428 U.S. 153 (1976).

If not guilty is not innocent, will the Commonwealth Court conduct a trial to determine innocence? With the informality that is required by the proposed statute, how is such a trial conducted? We know the burden of proof for guilt is beyond a reasonable doubt — what is the burden of proof for innocence?

If Pennsylvania were to enact a wrongful conviction and imprisonment compensation law, the Commonwealth would join 27 other states that have passed legislation providing some form of compensation. Texas provides the most comprehensive wrongful conviction compensation. Texas pays the wrongfully convicted $80,000 a year for each year of imprisonment and $25,000 a year for each year spent on parole or as a registered sex offender.

The other 26 states vary in the manner and amount of compensation, according to ABC News and the City University of New York. Awards in Massachusetts are capped at $500,000 and in North Carolina the limit is $750,000. In Missouri, only those who are found wrongfully convicted by DNA evidence can receive $18,000 per year for each year of imprisonment.

Utah limits compensation to the wages the state's average citizen earns in a year. New Jersey provides twice the yearly salary of the claimant the year before he or she was convicted. New Hampshire offers a maximum of $20,000 for the entire period of wrongful conviction and confinement. In Montana, claimants are only entitled to financial aid to attend a state college.

In 2004, the federal government enacted legislation that required compensation of $50,000 for every year of wrongful federal imprisonment and $100,000 per year if the time was spent on death row.

In states where wrongful conviction legislation has been enacted there is still a disparity in who ultimately receives compensation. A review of California's compensation scheme by California Watch found from 2000 to 2010, the state awarded funds to 11 of the 132 claimants who sought compensation. California denied 44 claims and nearly half of all claims never reached a final disposition.

Even in Pennsylvania, without a compensation statute, the outcome for those wrongfully convicted can be wildly different. Two men in Allegheny County, Thomas Doswell and Drew Whitley, were freed from prison when their convictions were overturned based on new DNA evidence. According to the Pittsburgh Tribune-Review , Doswell was convicted of rape in 1986 and spent 19 years in prison. Whitley was convicted of murder in 1989 and spent 17 years in prison. Both men sued in federal court. Doswell was awarded $3.8 million. Whitley received nothing — his case was dismissed.

Dauphin County District Attorney Edward Marsico, the former president of the Pennsylvania District Attorneys Association, is satisfied with the way Pennsylvania has resolved compensation issues. The compensation bill is "unnecessary, we have a system that can compensate those who were wrongfully convicted ... [We] shouldn't replace the court system," Marsico told KDKA-AM in Pittsburgh. Marsico also expressed concern for crime victims who are often not made whole especially in these difficult economic times: "Victim programs have been dramatically reduced."

Pennsylvania crime victims can apply through the Victims Compensation Assistance Program for up to $35,000 in restitution for losses incurred at the hands of a convicted offender.

"This is really about inequity. You could end up being paralyzed for life [from a crime], and all you get is $35,000. Period," Carol Lavery, director of the state Office of the Victim Advocate, told the Tribune-Review . "A person who didn't commit the crime should be compensated. I can't argue against that. If we're willing to pay millions to people who are truly innocent, there should be more equity." 

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