Since 1989, 2,676 Americans have been exonerated. When the innocent and the wrongly accused actually, finally get freed, you often hear about a big settlement they receive for the horrifying experience of losing years of their life in jail. But how does this work? How much do they get? Where does the money come from? How does the government decide how many dollars someone’s life is worth? Alongside Jeffrey Gutman, a professor of clinical law at George Washington University Law School who’s an expert on wrongful conviction settlements, we’re unlocking some answers.
How much money does an exonerated person get? Is this standardized?
As you can imagine, it’s complicated. In 2004, Congress passed the Justice for All Act. It standardizes things very easily, paying out $50,000 for each year spent in federal prison and $100,000 for each year spent on death row.
But this law only pertains to those exonerated from federal crimes. So, what about states? Here’s where the law varies wildly. Some states have what sound like generous settlement laws: For example, Texas pays $80,000 for each year spent in prison. Others, like Wisconsin, pay out far less: $5,000 for each year — with a cap of $25,000. Meanwhile, 15 states have no compensation laws whatsoever!
That’s disgusting. Why do some states have laws for this and others don’t?
Gutman doesn’t have empirical data, but he says, generally speaking, it depends on several factors. “A lot of it has to do, I think, with the strength of the innocence community in the state,” he says. “Whether there are good stories to tell that capture the imaginations of the legislators — particularly Republicans — and the potential budgetary impact of a compensation statute.”
In other words, a compelling case of a person wrongfully accused (a sort of poster child) in a state can make a big difference, with the lobbying to match it.
Does it generally fall along party lines?
Not at all, actually — Gutman says that Kansas recently passed one of the better statutes. Texas, as mentioned before, has more generous laws. Indiana recently passed a statute as well, and all are pretty solidly Republican. Meanwhile, longtime Democrat states such as Oregon, Pennsylvania and Rhode Island don’t have laws at all.
“A lot of it is historical; a lot of it is that you need to have a championing legislature, particularly a bipartisan one who’ll try to make this happen in that particular state,” Gutman says. “Some states are just a little more oriented to that than others.”
What can an exoneree do in states without compensation laws?
They could always file a civil lawsuit. Those can result in big payouts, but they can also take a lot of time, and the standard is awfully high compared to meeting the requirements of a given state’s compensation laws.
Anyone who’s exonerated can choose to pursue a civil trial, but if they do so in states with compensation laws, some states’ laws require them to forfeit their right to a state-mandated wrongful conviction settlement. In other states, it’s the opposite: If you get a state award, you’re barred from pursuing a civil case — Texas being one. Although in some states, you’re eligible for both, Gutman says. And in other states, if you receive state money, you’ve got to pay back any federally awarded money you’ve also received.
Which is the better option — should a person pursue a civil trial, or state compensation?
Gutman and other experts say it all depends on the individual and the circumstances of their case, and of course the advice of their attorney. Gutman says the average civil settlement is about $300,000 per year, which is six times higher than the average $50,000 that many states use.
“But [to win a civil suit] you have to prove that the wrongful conviction was the result of unconstitutional governmental conduct, whereas on the state side you don’t have to prove that the state made a mistake; you just have to prove that you’re innocent,” Gutman says. “Or that the state did something unconstitutional or unlawful. So the civil cases are potentially more lucrative, but they’re harder to win.”
How does an exonerated person get their money? Is it, like, handed to them when they get out of prison?
It’d never be that simple, would it? First of all, they have to apply for it, because there are a lot of qualifying factors — or rather, disqualifying factors. Depending on a state’s laws, not every exonerated person is able to get compensated. Some states award compensation only to people whose convictions were overturned based on DNA analysis. Or in other places, people who originally pled guilty or no contest to a crime are ineligible for the state’s compensation money (which obviously affects people who were coerced into a confession, or agreed to a plea bargain).
Overall, every state’s compensation procedure is different. Some are very smooth and efficient, while others can take a while. But in no cases is it completely automatic.
How do states decide the amount they want to pay? They’re effectively calculating the value of a person’s life.
“A lot of it is budgetary,” Gutman says. “A lot of states follow the federal model of $50,000 a year and say, ‘Well, if it’s good enough for them it’s good enough for us,’ and that’s true in some states but not in all.”
He points out that some states have an overall cap, while others even go by a range of years. “In Illinois, if you’re in from zero to five years, you get X; if you’re in from five to 14 years, you get Y; and if you’re there for over 14 years, you get Z,” he says. “Which doesn’t make any sense to me, but I guess it makes sense to people in Illinois. It’s really different from state to state.”
What it comes down to most of all, Gutman says, is your typical, sausage-making politics, meaning it all depends on what a lawmaker can get passed. And in Gutman’s experience the interesting thing, he says, is that legislatures often don’t have a hard time picking the number; what reluctant lawmakers get stuck on is whether the standard they set will allow them to deny the claims of those who aren’t really innocent. “It’s not so much how much they pay — it’s the worry about paying people who don’t deserve it… whatever ‘deserve’ means,” he explains. And so the politicking all revolves around hitting that sweet spot.
Of course, the downside of having too many standards to meet is that exonerees will be battling the state in court for a long time — and meanwhile, they’re without any financial support or assistance at a time they could probably use it most.
Do they get anything else besides money?
Sure. Many states offer monetary and nonmonetary awards: Participation in a state health-care system, counseling, education, vocational training — sometimes even paying back accrued child support, as Colorado does. (Imagine the bill for unpaid child support after spending, say, 20 years in jail.) Other states provide a sort of short-term, emergency grant while a claim is pending.
There’s actually one state that compensates without any money at all: Montana, which offers college education instead of a monetary settlement.
Where does this money come from, anyway?
Usually states set up a special appropriation, and the money that goes into it comes out of the state’s general fund. In some states (California, Illinois, Virginia), the legislature has to actually approve every award. Sometimes states will proactively set aside a bunch of money in a wrongful-conviction fund — and every once in a while they actually have to replenish it when it empties! That happened in Michigan, Gutman says — it recently passed a statute, it had a lot of exonerees who applied, and the state ran out of $10 million pretty fast.
What’s the most generous state overall for wrongful conviction compensation?
Gutman says that depends on how you define generosity. Is it by high dollar amounts? Is it by the number of exonerees who get compensated after applying for it? Is it by covering the most total years lost in prison? “If there’s a state that has 10 exonerees, and nine of them have been in for one year and one was in for 30 years, and [the state grants] the 30 but not the nine, I guess it’s a philosophical question as to whether that’s better,” Gutman says.
Some states approve a high percentage of people who apply for compensation; however, it’s not where you’d think. California is actually a very tough state in which to receive compensation, Gutman says.
But here’s Gutman’s answer: He recently wrote a paper on this very topic, titled “Why Is Mississippi the Best State in Which to Be Exonerated?” “The thesis of it was Mississippi — of all states, not the one you’d expect — if you look at the number of exonerees who apply, the number who are granted and the percentage of the lost years of that group that gets at least some compensation, Mississippi is the best state, or at least, was at the time I wrote the article,” he explains.
Which is to say, laws are always changing — though often not nearly soon enough for the wrongly accused.
Adam Elder
Adam Elder is a writer in San Diego. He's also written for Esquire and WIRED magazines, VICE, The New York Times, The Wall Street Journal, The Guardian, newyorker.com and elsewhere.
