Making amends for jailing the innocent

Once the cell doors lock on innocent people, it can take years for the truth to emerge. It may come out if the real criminal confesses, or via a DNA sample, or through sheer persistence in the legal system.

But after their release from prison, does the government owe these people anything except freedom - something to atone for the years of separation from family, friends, work - all that exists beyond the walls and barbed wire?

In most states, the answer so far has been no.

But now, after a spate of DNA-linked exonerations and a couple of big jury awards tied to prosecutorial misconduct, some momentum is building to improve compensation. In Massachusetts and Missouri, legislators are spearheading efforts to pay people for the years of lost freedom. "Until recently, the problem of wrongful convictions wasn't really on the legislative agenda," says Locke Bowman of the University of Chicago's MacArthur Justice Center. "It's more so now than at any time in my memory, as a result of the attention that's been given to the number of wrongful death-row convictions."

With the relatively new phenomenon of DNA testing, the list of cases in which innocence can be proved continues to grow. And with each new exoneration, states and their citizens are asking hard questions about the death penalty, government's responsibility to deter mistakes, and how to try to right a terrible wrong.

"It should be costly when things like this occur, so that people have incentives to take precautions to prevent them from occurring again," says Mr. Bowman.

Occasionally, the falsely imprisoned sue for damages on grounds of civil rights violations or prosecutorial misdeeds. In Illinois last spring, a group known as the Ford Heights Four was awarded a record $36 million in a wrongful-prosecution lawsuit against Cook County. Between them, Dennis Williams, Kenneth Adams, William Rainge, and Verneal Jimerson had spent 65 years in jail. Two of them had been sentenced to die.

But so far, the price of mistakes is paid primarily by the innocents themselves. Successful lawsuits are rare because of the immunities and defenses available to police and prosecutors.

"It is not easy to sue and prevail," says James McCloskey, founder of Centurion Ministries, a group in Princeton, N.J., that has helped free 20 people across the US. He is considering the possibility of a civil suit on behalf of Ellen Reasonover, who spent nearly 17 years in a Missouri prison for murder. She was released in August when a judge ruled the prosecution had suppressed evidence that supported her claim of innocence.

Fourteen states do have indemnification laws, but awards often are capped. In California, for instance, the most a person can get is $10,000 - a limit set in 1941. Maine allows up to $300,000, and other states designate a maximum for each year of imprisonment. Without a specific appeal to Congress, the cap for compensation of wrongful conviction for a federal crime is $5,000.

New York's system is a role model, some observers say, because a judge evaluates each claim and is not bound by any limits. "They allow individuals to prove their loss just the way any claimant in a personal-injury case would," says Adele Bernhard, an associate professor at Pace University School of Law in White Plains, N.Y., who tracks compensation options in all 50 states.

"The issue is whether you are going to make an attempt to make the person whole," Bowman says. "If you're going to try to do that, you have to look at these issues - the lost life, the pain and suffering, and the future impact of the incarceration on the person's life expectations."

It's easier, too, to qualify for compensation in New York, where all that's needed is for the charges to be dismissed because of innocence - rather than an official nod from the governor. That reduces the likelihood of politics coming into play, yet still screens cases to prevent a flood of claims, Ms. Bernhard says.

The potential for arbitrary decisions is even stronger in states with no such law. In Massachusetts, for instance, state Rep. Thomas Kennedy (D) says he pursued restitution on behalf of constituent Peter Vaughn partly because he is a friend of Mr. Vaughn's lawyer.

Representative Kennedy is sponsoring a bill to set up a commission that would study the compensation issue more broadly.

"Our system, although an excellent system, is far from perfect, and ... we're going to find people who were unjustly convicted and who deserve a redress from the government," he says.

No one argues that money is the answer to all the challenges a person may face after being released from prison. But advocates for compensation argue it has value on two levels.

Practically speaking, "what's necessary in many cases are things that money can buy - intensive psychotherapy, a degree of material comfort, the ability to support oneself for a period of time without holding a job," says Bowman.

Symbolically, it can be a recognition of the harm done, and should amount to more than covering just legal fees and lost salary, advocates say.

No group tracks the number of wrongly convicted people released from prison each year. Among inmates on death row, however, 82 people have been exonerated and released since 1973, according to the Death Penalty Information Center in Washington.

"Some years ago, people would say, 'Oh, that's just Georgia, or Mississippi," says Ann Lambert, legislative counsel for the American Civil Liberties Union of Massachusetts.

Now, she says, Illinois has released as many people as it has executed. "When you hear about these situations ... you start thinking, shouldn't we do right by people who are wrongfully convicted?"

(c) Copyright 1999. The Christian Science Publishing Society