A critique of Innocence Project Report on exoneree compensation 'Making Up For Lost Time'
Criminal Justice Reform Examiner: Jeffrey Deskovic
January 9, 12:27 PM
I spent 16 years in prison prior to being proven innocent by DNA with the help of The Innocence Project www.InnocenceProject.org . The testing not only showed my innocence, but it also proved the guilt of the real perpetrator, who subsequently was arrested, pled guilty, and was sentenced for the crime www.jeffreydeskovicspeaks.org. In the slightly more than three years that I have been home, I have experienced first hand the difficulties of reintegrating back into society.
When the average person hears an exoneration story, two thoughts usually go through their mind: horror that an innocent person was in prison wrongfully, and happiness that their ordeal is finally over. In reality, however, although the physical imprisonment is over, the ordeal has only begun. Exonerees are released with no money, and, unlike parolee's, receive no assistance from the state to reintegrate back into society. Although they are able to seek compensation through lawsuits that take between 3-5 years, nothing is provided in the interim. Many states offer no compensation at all, and some that do are inadequate.
The Innocence Project recently released a report called "Making up for Lost Time: What the Wrongfully Convicted Endure and How to Provide Fair Compensation". www.innocenceproject.org/docs/Innocence_Project_Compensation_Report.pdf
The focus of this article is to review that report and offer a critique. A quick caveat first. While I will always be grateful to The Innocence Project for winning my freedom, that does not mean that I will always agree with their recommendations, or that it is somehow disrespectful if I voice my dissent. Instead, I have become an advocate in my own right, and I owe it to the people that support my advocacy efforts, the cause, and to myself, to speak about anti-wrongful conviction issues no matter who may hold an opposite opinion.
The report recommends replacing the lawsuit system with a compensation statute that would provide $50,000 per year of wrongful incarceration, and a variety of immediate services. They write "The financial awards exonerees receive through lawsuits often surpass those available through state compensation statutes. However, lawsuits are also more expensive, and part of the award money will be spent on litigation fees. In addition, lawsuits are more time-consuming and take longer to finalize. After years of fighting to prove their innocence, exonerees need a safety net, not another long legal battle. Winning a lawsuit can't help exonerees find jobs, counseling, medical care, educational aid and other essentials they need for a successful transition."
I agree with their suggestions of immediate assistance: transportation, education, workforce development, physical and mental health care through the state employee's health care system and other transitional services, immediate emergency housing, public transportation vouchers, the creation of a release plan by The Department of Social Services, and free tuition at state university. I would also add job training and placement to that list. But these should be provided in addition to what is awarded by a court which assess' lost wages, impacted future wages, pain and suffering.
Each person's life circumstances are different; certainly the lost wages of a middle aged adult who had dropped out of high school could not be equal to a college educated exoneree, and certainly not to an exoneree who was a well paid employee at the time with a solid future. The same is true of of impacted future wages. Future earnings are negatively impacted because an exoneree is not able to secure gainful employment due to lack of experience and possible mental health problems.
The difference between what one could have earned and what is actually earned is vast, and justice requires that it should be made up. Similarly, although wrongful incarceration is hell for everyone, the amount of personal anguish, trauma, and psychological damage will vary. A person who was assaulted, abused, and left prison with health problems suffered more than someone who did not. Age too is a factor: a teen missing out on the normal growth that occurs during formative years is in worse shape than an adult who who was fully developed at the time of the wrongful conviction. The amount of fear and vulnerability will also vary between adults and teens.
Considering that $50,000 is a mid level paying job, this amount is inadequate on the issue of lost wages alone, let alone when one factors in impacted future wages, and pain and suffering. It is adding insult after injury for a state to tell an exoneree that the pain and suffering of wrongful imprisonment that they endured was only worth $50,000. Take someone who was wrongfully imprisoned for 20 years. Could anybody, in good conscience, say that one million dollars is adequate compensation for them? What if you, your son or daughter, had served the 20 years and were then cleared. Would you view that amount of compensation as adequate for the type of injuries suffered?
Here is another angle: take the case of an exoneree who, due to psychological problems resulting from their wrongful incarceration, is unable to work consistently and therefore permanently unable to become gainfully employed. That means that they are unable to meet their cost of living expenses through earned income and therefore must do so out of the compensation that they were awarded. The $50,000 per year of wrongful incarceration would be manifestly inadequate when a longer term view is taken because they would still be in a precarious position financially, worries about their financial future would still be on their mind, and they would seem doomed to a life of poverty- all as a result of something beyond their control- being wrongfully convicted and then being inadequately compensated.
For these reasons, The Innocence Project's recommendation should not be adopted by state legislatures.
Even under the currently inadequate compensation system- which offers no immediate assistance, requires exonerees to pay the costs of litigation as well as the exploitative one third that goes to attorney's prosecuting the lawsuit-which has somehow came to be seen as acceptable and the norm- the exoneree would still be left with more money than what they would get under the proposed $50,000 a year. Acceptance of this proposal by states would not be in the best interests of exonerees, and would not represent an effort on the part of the state to be fair and compassionate towards the people that their state wrongfully convicted and imprisoned, often for decades.
Those two above mentioned deficiencies should be legislatively fixed. If the state loses the compensation lawsuit, they should be obligated to pay the costs of the litigation as well as the attorney fees; the exoneree should not have to part with any of the compensation that is awarded to them. After all, the amount that they are given is the amount that a court assessed would be fair and just after taking into account the individual facts and circumstances of the particular case. Subtracting fees and expenses from that amount would leave them with an amount less than that, and of a necesity is therefore unjust.
In terms of exonerees not "needing another long legal battle", the answer is to try to quicken the time needed to litigate the compensation case, and providing immediate reintegrative services; not giving the exoneree an inadequate amount of money that does not take into account the above mentioned factors in the name of speed.
If you agree with that The Innocence Project's recommendation regarding $50,000 per year of wrongful incarceration is inadequate, and you do not want them to recommend this course of action to state legislatures throughout the country, please call them at 212-356-5340, ask for the policy department, and then express your concerns. Reference the arguments made in this article, lest the situation for struggling exonerees is made worse by legislative adoption of an inadequate remedy.
Those states whose laws do not currently allow for compensation, should pass legislation granting it, and those states whose laws are inadequate should improve them, but that improvement should be enough to make the wrongfully convicted whole again, as best as we as a society can make them.
To read more about exoneree struggles to reintegrate, please read my article "Catch 22: Obstacles The Wrongfully Convicted Face Upon Release" http://www.jeffreydeskovicspeaks.org/articles/0703Catch.pdf
Retiring Arizona Prison Watch...
This site was originally started in July 2009 as an independent endeavor to monitor conditions in Arizona's criminal justice system, as well as offer some critical analysis of the prison industrial complex from a prison abolitionist/anarchist's perspective. It was begun in the aftermath of the death of Marcia Powell, a 48 year old AZ state prisoner who was left in an outdoor cage in the desert sun for over four hours while on a 10-minute suicide watch. That was at ASPC-Perryville, in Goodyear, AZ, in May 2009.
Marcia, a seriously mentally ill woman with a meth habit sentenced to the minimum mandatory 27 months in prison for prostitution was already deemed by society as disposable. She was therefore easily ignored by numerous prison officers as she pleaded for water and relief from the sun for four hours. She was ultimately found collapsed in her own feces, with second degree burns on her body, her organs failing, and her body exceeding the 108 degrees the thermometer would record. 16 officers and staff were disciplined for her death, but no one was ever prosecuted for her homicide. Her story is here.
Marcia's death and this blog compelled me to work for the next 5 1/2 years to document and challenge the prison industrial complex in AZ, most specifically as manifested in the Arizona Department of Corrections. I corresponded with over 1,000 prisoners in that time, as well as many of their loved ones, offering all what resources I could find for fighting the AZ DOC themselves - most regarding their health or matters of personal safety.
I also began to work with the survivors of prison violence, as I often heard from the loved ones of the dead, and learned their stories. During that time I memorialized the Ghosts of Jan Brewer - state prisoners under her regime who were lost to neglect, suicide or violence - across the city's sidewalks in large chalk murals. Some of that art is here.
In November 2014 I left Phoenix abruptly to care for my family. By early 2015 I was no longer keeping up this blog site, save occasional posts about a young prisoner in solitary confinement in Arpaio's jail, Jessie B.
I'm deeply grateful to the prisoners who educated, confided in, and encouraged me throughout the years I did this work. My life has been made all the more rich and meaningful by their engagement.
I've linked to some posts about advocating for state prisoner health and safety to the right, as well as other resources for families and friends. If you are in need of additional assistance fighting the prison industrial complex in Arizona - or if you care to offer some aid to the cause - please contact the Phoenix Anarchist Black Cross at PO Box 7241 / Tempe, AZ 85281. firstname.lastname@example.org
until all are free -
MARGARET J PLEWS (June 1, 2015)