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January/February 2009

Wrongly Convicted: Victim of the Justice System

By Farrah Martinez

One victim frequently overlooked by our judicial system is the innocent person wrongfully convicted of a crime who ultimately serves an undeserved sentence. This type of injustice affects our entire society; there is no economic class, race, or gender classification safe from the intrusion of a wrongful conviction. The federal government recently passed a statute which is designed to rapidly exonerate the innocent through DNA testing, improve the quality of legal representation in state capital cases and increase the monetary amount available to those wrongfully convicted of crimes.1 Twenty-five states have also enacted laws to recompense those wrongly imprisoned.2 While addressing the pecuniary issues affecting the erroneously incarcerated is certainly an excellent starting point, the wrongfully imprisoned experience a plethora of other hardships, including loss of time, divorce, loss of custody or visitation rights, re-employment obstacles, deficient employment skills, and a range of emotional and physical ailments that are not ameliorated by money. Accordingly, each state should provide both reasonable compensation and reclamation assistance to those whom the justice system has failed.

Background

Since 1989, 225 convicted people were exonerated by post-conviction DNA evidence in the United States.3 Only about half of the exonerees received any type of financial compensation from the state or federal government that prosecuted, convicted and incarcerated them, while the other half were left empty handed.4 These wrongfully imprisoned men and women spent an average of 12 years in confinement; yet, half were released from custody with absolutely no financial compensation.5

Prior to DNA testing, claims of actual innocence rarely ever succeeded. Now Texas leads the nation with 36 exonerations obtained through DNA testing alone.

 

Federal Compensation for Wrongly Convicted

On October 30, 2004, President George W. Bush signed into law the Innocent Protection Act of 2004.6 The Act is designed to increase accessibility to DNA testing, provide incentive grants to states for DNA testing programs, and increase compensation for those wrongfully convicted of federal crimes.7

In addition, the Act established guidelines and procedures governing federal inmates’ applications for DNA testing.8 Specifically, the Act provides for repercussions if – subsequent to the testing – the evidence fails to corroborate the inmate’s claim of actual innocence.9 A false assertion of actual innocence subjects the applicant to a minimum sentence of three years in federal prison, loss of good conduct credit, denial of parole, and assessed court costs.10 In the case of exculpatory test results, the court is required to grant the applicant’s motion for new trial or resentencing “if DNA test results, when considered with all other evidence in the case (regardless of whether such evidence was introduced at trial), established by compelling evidence that a new trial would result in an acquittal.”11

Under the Innocence Protection Act of 2004, federal funding is also available to any state dedicated to improving the quality of legal representation to indigent defendants in capital cases.12 States are required to develop, implement and/or endorse a specialized training for defense attorneys in capital cases. Further, states are required to monitor the performance of appointed counsel and remove attorneys from the qualified roster who “fail to deliver effective representation,” engage in unethical behavior, fail to comply with the requirements of training, or have received a disciplinary sanction for conduct relating to a criminal case in federal or state court.13 A separate grant is also available to states that enhance “the ability of prosecutors to effectively represent the public in State capital cases.”14 Theoretically, the number of wrongful convictions and actual innocence claims should decrease if competent lawyers represent the accused and both prosecutors and defense lawyers are adequately trained to handle capital cases. With reference to monetary compensation, in Federal court, the wrongfully convicted qualify to receive sums of $50,000 for each year of incarceration.15 Individuals wrongfully sentenced to death row could receive $100,000 per year of confinement. There is no cap on the maximum amount an individual is entitled to receive.16 Previously, the wrongly convicted could only seek a meager $5,000 per year, even if they had undeservedly received a death sentence.17

Moreover, Congress recommended “that States should provide reasonable compensation to any person found to have been unjustly convicted of an offense against the State and sentenced to death.”18 Unfortunately, one-half of the states ignored the recommendation and failed to enact compensation statutes designed to assist the wrongly imprisoned.

 

Texas Increases Compensation

In 2007, the State of Texas took a stand and passed legislation to increase the amount of compensation available to the wrongfully convicted.19 Previously, an exonerated person could only receive $25,000 multiplied by the number of years incarcerated. The new legislation doubled that amount to $50,000 per year.20 Those sentenced to death are now eligible to receive $100,000 for each year served – a substantial increase from $50,000 previously allotted.21 The bill also provides additional funds for child support payments owed by the claimant during the time of imprisonment and interest accumulated on child support arrearages.22 Further, the Texas Department of Mental Health and Retardation now offers free counseling to claimants for one year at a mutually acceptable location.23  

 

Road to Recovery

Texans may seek compensation by filing a civil law suit against the State or through an administrative process. The latter allows claimants to file an application with the comptroller’s judiciary section.24 Each applicant must include (1) a completed application, (2) a verified copy of the court order or Governor’s pardon, (3) a statement by the Texas Department of Criminal Justice confirming the length of incarceration, and (4) claims for child support must be accompanied by a certified copy of the child support order and an official copy of claimant’s child support payment history.25 Prior to the new legislation, the law required claimants to submit a certification of the claimant’s actual innocence signed by the prosecuting District Attorney. Frequently, the requirement proved to be a cumbersome task that prevented claimants from submitting complete applications and further delayed claimants’ recovery.

Once applications are submitted, the comptroller determines the eligibility of each claimant and the specific amount owed to eligible claimants within 45 days of receipt of the application.26 A notice of denial must be sent to the claimant stating the reason for the denial.27 The claimant must respond within ten days from the date the claimant received notice of the denial and submit “an application to cure any problem identified.”28 After the claimant submits a cure to the alleged defect, the comptroller has another 45 days to review the re-submitted application. If the application is still denied, then “the claimant may bring an action for mandamus relief.”29

In cases where the comptroller grants compensation, all awards of $50,000 or more are disbursed into two lump-sum payments.30 Any award of child support compensation is sent directly to the state disbursement unit on behalf of the claimant in one lump-sum payment.31 The statute of limitations to file an administrative application is three years from the date of pardon or court order declaring actual innocence.32 A claimant’s payment is subject to termination if, after a claimant becomes eligible for compensation, the claimant is subsequently convicted of a felony.33           

Texas claimants may also seek compensation by filing a civil lawsuit against the State of Texas in which the “state’s immunity from the suit is waived.”34 In that proceeding, the petitioner will be required to prove by a preponderance of the evidence that petitioner is entitled to compensation in the amount alleged.35 The Texas Attorney General, who represents the state, is precluded from asserting that the “judgment of conviction” or indictment by a grand jury that resulted in the petitioner’s imprisonment was anything other than an act on behalf of the state.36 At the court’s discretion, the entire criminal trial record detailing the petitioner’s conviction (including any court order granting relief on the claim of actual innocence or a proclamation of pardon by the Governor) is admissible.37 The total amount of compensation that may be awarded to the claimant via the civil proceeding is $500,000 including legal fees associated with the criminal proceedings, any appeal of the wrongful conviction, fines, court costs paid, reasonable attorneys’ fees, any loss of income, medical expenses, and counseling.38 Petitioners remain eligible to apply for payment of their delinquent child support obligations as a result of being wrongfully imprisoned.39

 

Needs of the Exonerated

According to the Innocence Project, the needs of the exonerated far outweigh the financial compensation provided by most states.40 Further, the resulting physical and mental problems are numerous and complicated.41 Exonerees often re-enter a society very different from when they were incarcerated. A poll conducted by the Innocence Project indicated 46 percent of exonerees confront significant re-employment issues and depend upon relatives for financial support. Skeptical employers often refuse to hire individuals who, although “wrongly convicted,” were incarcerated for an extended period of time and whose jobs skills are deficient in today’s workplace. Additionally, exonerees need legal assistance to expunge wrongful convictions and to re-establish custody or visitation rights for the children they unwillingly left behind.42 As for family-life, counseling is desperately needed to mend damaged relationships and “address the psychological strains of the wrongful conviction and prison experience.”43 

 

Conclusion

As government attempts to right the wrongs of the past, DNA testing is part of the frontal movement to prevent wrongful convictions. The Federal government leads the way and recommends the states follow closely behind in an effort to circumvent wrongful prosecution of the innocent. Recent amendments by Texas to the wrongfully imprisoned compensation statute demonstrate a willingness to change and admit that the wrongfully imprisoned need assistance to re-acclimate to society. The wrongly convicted are innocent victims of a flawed justice system. Each state should be required to provide reasonable and just compensation to those lives grossly impacted as a result of an imperfect system.

 

Farrah Martinez is the Director of Legislative Affairs for the Harris County District Clerk.  Previously, she maintained a private practice that focused on criminal and juvenile
defense. Martinez serves on the editorial board of
The Houston Lawyer and is co-chair of the HBA Speakers Bureau Committee.

Endnotes

1. Justice for All Act of 2004:  Section by Section Analysis, Title IV—Innocence Protection Act of 2004, http://leahy.senate.gov/press/200410/100904E.html (last visited Nov. 24, 2008).    2. The Innocence Project – News and Information: Fact Sheets, Compensating the Wrongly Convicted, http://www.innocenceproject.org/Content/309.php (last visited Nov. 24, 2008).    3. The Innocence Project – News and Information: Fact Sheets, Facts on Post-Conviction DNA Exonerations, http://www.innocenceproject.org/Content/351.php (last visited Nov. 24, 2008).   4. Id.   5. Id.   6. Justice for All Act of 2004:  Section by Section Analysis, http://leahy.senate.gov/press/200410/100904E.html.   7. Id. at Titles II, IV.   8. Id. at § 411.   9. Id.   10. 18 U.S.C. § 3600(f)(2)(B).   11. Id. § 3600(g)(2).   12. 42 U.S.C. § 14163(a).   13. Id. § 14163(e)(2)(A)–(E).   14. 42 U.S.C. § 14163a(a).   15. 28 U.S.C. § 2513(e).   16. Id.   17. Id.   18. Justice for All Act of 2004:  Section by Section Analysis, § 432, http://leahy.senate.gov/press/200410/100904E.html.    19. Tex. Civ. Prac. & Rem. Code Ann. § 103.052(a) (Vernon Supp. 2008).   20. Id.   21. Id. § 103.052(a-1).   22. Id. § 103.052(a)(2), (d).   23. Id. § 103.052(c).   24. Id. § 103.051(a).   25. Id. § 103.051(a)(1)–(4).   26. Id. § 103.051(c).   27. Id. § 103.051(d).   28. Id.   29. Id. § 103.051(e).   30. Id. § 103.052(b).   31. Id. § 103.051(d).   32. Tex. Civ. Prac. & Rem. Code Ann. § 103.003 (Vernon 2005).   33. Tex. Civ. Prac. & Rem. Code Ann. § 103.154(a) (Vernon Supp. 2008).   34. Tex. Civ. Prac. & Rem. Code Ann. § 103.101(a) (Vernon 2005).   35. Id. § 103.102.   36. Id. § 103.103.   37. Id. § 103.104(a).   38. Tex. Civ. Prac. & Rem. Code Ann. § 103.105(a), (c) (Vernon Supp. 2008).   39. Id. § 103.105(c).   40. The Innocence Project – News and Information: Fact Sheets, Compensating the Wrongly Convicted, http://www.innocenceproject.org/Content/309.php.   41. Id.   42. Id.   43. Id.


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