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Compensation for the Wrongfully Convicted: How Can America Right Its Wrongs?

On June 5, 2020, Walter Ogrod walked out of prison as a free man after spending nearly 23 years on Pennsylvania’s death row. The issue is that Ogrod should have always been free. Accused of murdering a 4-year-old girl, Ogrod’s conviction was the byproduct of a coerced confession, false testimony by a jailhouse informant, and Brady violations—which occur when the government (or an individual acting on behalf of the government) fails to disclose information favorable to the accused. Now, with nearly half of his life lived in scheduled isolation (22 hours per day in his cell with no interaction with people, other than guards) Ogrod is working on reintegrating into a world with social media, iPhones, and a global pandemic. Convicted and exonerated in Pennsylvania—a state with no compensation statute for the wrongfully incarcerated—Ogrod faces an uphill battle to receive compensation monetarily and otherwise. 

Though Ogrod’s story is certainly unique, it is not an anomaly. Since 1989, 2,663 people have been released from prisons throughout the United States with evidence of their innocence. As a nation founded on certain unalienable rights—namely liberty—incarcerating innocent civilians should be at the forefront of our concern. While exonerating an individual is a necessary start, it is not a sufficient solution. Wrongful convictions, like any imprisonment, not only affect the person the sentence is imposed upon but also cause social, economic, and psychological harm to their family, friends, and community. 

The challenges that exonerees like Ogrod inevitably face when they are released from prison are complicated by the various, insufficient methods of support available across the country, the criminal stigma that accompanies spending time in a correctional facility, and public perceptions of guilt and fault. Furthermore, the difficulties exonerees face when they return home, though similar to those of factually guilty people, are only exacerbated by the fact that they are not eligible for the same post-release programs. Despite these challenges—and the fact that the system that was designed to protect them vilified them instead—the wrongfully convicted must make something of the years they have left by mending relationships, finding housing, applying for jobs, and coping with a world they may no longer be familiar with.

While there is certainly no exact way that states can repay an exoneree for the years that were taken from them, the wrongfully convicted can attempt to receive compensation through the state and independent organizations. Currently, the government offers redress through litigation, private legislation, and compensation statutes; the latter two of which vary state-by-state. 

Here’s a general overview of existing remedies:

  1. Under the umbrella of litigation, an exoneree can pursue a Section 1983 claim or a tort claim to attempt to receive monetary compensation. Utilizing these methods involves bringing charges against one or more state actors whose actions, in the exoneree’s opinion, caused their incarceration. Litigation is cumbersome, expensive, and promises no reward. It also requires that an exoneree can afford an attorney to represent them or can find one who is willing to work pro-bono. Furthermore, in almost all cases, police and prosecutors are shielded in their measures as state actors through either absolute or qualified immunity; police officers are even protected after they offer perjured or untruthful information at trial.
  2. An exoneree can also petition the state legislature for a private bill. Sometimes described as moral obligation bills, private bills relate to only personal and/or local issues and are used to reimburse people who have been victimized by the state. This legislation is used in unique situations when the government causes legitimate harm yet has no other means to resolve the debt. While private bills appear, at face value, to be a viable method for receiving redress—especially considering that arguably few people have been harmed more by the state than the wrongfully convicted—this approach is rarely successful. Furthermore, it places the burden on exonerees to find politicians and legislatures to support their effort.
  3. Finally, state compensation statutes provide wrongfully convicted people with a monetary award as well as other services. Via this method, exonerees do not need to prove that someone else’s actions or mistakes placed them in prison, but rather that they have simply served time in a correctional facility despite being factually innocent. State compensation statutes are designed to work similarly to workers’ compensation systems. 36 states, Washington D.C., and the federal government have enacted innocence compensation statutes. While these resolutions sound great in theory, there is a great disparity across state lines, and almost no state offers adequate nor holistic compensation. For example: according to state statutes, a wrongfully convicted person in New Jersey may be eligible to receive $20,000 or twice their income the year before they were incarcerated (whichever sum is larger), however, if the same person was incarcerated and exonerated across the border in Pennsylvania, they would not be eligible for any redress.

While compensation statutes, as the lesser of three evils, are a step in the right direction, they still lack national consistency which leaves some exonerees with nothing; a sample of 1,900 exonerees revealed that only 39% receive compensation under the current policies. This inequality across state lines leads to innocent people, like Ogrod, being further victimized despite their newfound freedom.

Furthermore, adequate monetary compensation can be a significant defense factor against post-release offending. A study conducted in 2013—using a sample of 118 exonerees who were released between 1999 and 2009 in Texas, Illinois, Florida, and New York—found that exonerees, despite their innocence, are considered to be at high risk for criminal offending after they are released from prison due to the damaging emotional, psychological, and physical effects incarceration has on people. For this reason, they found that adequate compensation, both monetarily and in other aspects, can be paramount to success after time in custody. Their analysis concluded that wrongfully convicted people who received more than $500,000 in compensation were significantly less likely to cope criminally than those who received less than that or were not compensated at all. This suggests that adequate compensation benefits more than just the exoneree; it also promotes safety in communities around the country. 

A 1996 National Institute of Justice report found, in short, that "the extent of factually incorrect convictions in our system must be much greater than anyone wants to believe.” Error and inaccuracy are always a risk in human-run networks; the criminal justice system is no exception. Jurors, judges, and law enforcement officials are, like all people, imperfect and while justice should always be sought, the pursuit of it works differently in practice than it does in theory. While the names of the nearly 3,000 people who have been criminally convicted and exonerated in the past 30 years are known, there are inevitably still more men and women incarcerated for someone else’s actions. 

Our current system does not bring justice to the victim, their family, the perpetrator, nor the wrongfully accused; increased attention to the issue and causes of wrongful convictions in the past few years reflects this national attitude. While state and federal governments have no legal responsibility to compensate the wrongfully convicted, they certainly have a profound moral obligation to right those whom they have indisputably wronged.

To learn more about the people who have been wrongfully convicted click here to view the National Registry of Exonerations, here to learn about the Innocence Project, and/or here to hear the stories of death row exonerees.

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