Debra Milke: Why freedom feels so elusive to death row exonerees

Released after spending 22 years on Arizona’s death row, Debra Milke called her exoneration 'bittersweet.' Legal experts say the plight of exonerees such as Milke has played into how juries view the ultimate sanction.

Until this week, Debra Milke, who spent 22 years on Arizona’s death row, remained a ward of the state. After a Maricopa County judge on Monday dismissed all charges related to the 1989 murder of her son, Christopher, a deputy removed an ankle monitor.

At that moment, Ms. Milke became a member of an exclusive club no one would voluntarily attend – one of the few who were walked by the US justice system to the threshold of state-sponsored death only to be fully released after courts found their conviction wrongful.

The Milke case, which comes amid a string of death-row exonerations from North Carolina to Louisiana, has put renewed focus on what is for many one of the most troubling parts of the death penalty regime in the US: The living, walking proof that there are flaws in the system. Just weeks before Milke’s ankle monitor was removed, a Louisiana death row inmate, Glenn Ford, walked away from prison a free man.

Such stories of injustice have given Americans new insights into what University of North Carolina political scientist Frank Baumgartner, a death penalty critic, has called a “system built on false promises for everyone.”

Moreover, the difficulty exonerees face in getting compensated or even finding a job and an apartment – in short, to get their life back – has contributed to a gnawing concern among many Americans regarding less the ethics of the death penalty, but the justice system's ability to fully correct life-and-death mistakes.

“The fact that there’s innocent people in prison or death row has transformed people’s understanding of the death penalty,” says Mr. Baumgartner, author of “The Decline of the Death Penalty and the Discovery of Innocence.” “Your opinion about the death penalty in the abstract is one thing, but meeting exonerees changes the death penalty from an abstract principle to a very practical issue of: Can the government do it right every single time?”

Among the public, there appears to be a growing awareness of the imperfectness of the legal system. March’s two death-row exonerations come after a record 125 Americans were absolved in 2014 of the crimes for which they had been convicted.

To be sure, prosecutors – as well as many ordinary citizens – take a skeptical view of many of the now 151 death-row inmates who have been cleared of charges since the 1970s.

“In many cases, the view is, ‘We know who did it, it was him, and he got away with it’ – that’s what an exoneree has to live with in their hometown,” says Ray Krone, who in 2002 became the 100^th death row inmate exonerated in the US since the death penalty was reinstated in 1976.

Mr. Krone, who was released after DNA evidence conclusively showed another man committed the murder for which he was convicted, says that he had it "relatively easy" upon his release, given the deep support of his family and his Pennsylvania hometown.

But even Krone, who was known in the press as the "Snaggletooth Killer," struggled with his freedom. He was detained trying to cross into Canada after his name was flagged in an FBI database as a convicted murderer. Fortunately, he says, he had a magazine with a cover story about his release that proved enough to allow Canadian authorities release him. His legal battles for remuneration also took a toll, he says. "I wouldn't trade 10 years for $2 million, but, remember, they didn't give that money to me. I had to fight to take it from them. " 

Once released, many exonerees have to deal with moving back to small towns where neighbors and police harbor skepticism. Then there is the difficulty of escaping the memories of being wrongfully imprisoned just yards from the death chamber. 

“Psychological research of the wrongfully convicted shows that their years of imprisonment are profoundly scarring," according to a 2009 report by the Innocence Project, which uses DNA testing to seek the release of innocent inmates. “Many suffer from post-traumatic stress disorder, institutionalization and depression, and some were victimized themselves in prison. Physically, they have aged ahead of their peers, and often their health has suffered from years of sub-standard prison health care.”

Going forward, many of those who are exonerated based on wrongful convictions also enter a sort of fugue state. 

For example, Henry McCollum, who spent 31 years on death row in North Carolina before being released last September, referred to his post-prison bedroom as a “cell” in an interview in March with The New York Times. Mr. McCollum and his half-brother Leon Brown were exonerated, based on DNA evidence, of the 1983 murder of a child.

Since their release last September, writes the Times, “both men have clung to a minimal existence, absent substantive remuneration, counseling or public aid in transitioning back to society.” The two men were each given $45 upon their release and lived on charity. They recently received a bank loan that allowed them to move into an apartment.

In various studies, including the recent book "Life After Death Row," exonerees say trauma and anger from false imprisonment compounded by lack of guidance and help after release often leads to a sense of unresolved displacement and isolation. 

“We all have different types of pigeonholes we put people in – whether it’s religion, sexual orientation, there’s always some kind of label,” says Mr. Krone. “But for an exoneree, there’s no mark on a job application, there are no benefits, there’s no tax write-offs, in large part because the justice system can’t admit it made a mistake.”

That certainly appears true in the case of McCollum and Brown.

As North Carolina Gov. Pat McCrory mulls whether to give the men a pardon, and thus compensation worth $1.5 million, the prosecutor who put them on death row hasn’t changed his opinion. “There is no doubt in my mind that they’re not entitled to a pardon, and there is no doubt in my mind that they’re not entitled to compensation by the taxpayers,” Joe Freeman Britt, who prosecuted the pair, told the Times.

Support for the death penalty has hovered at around 63 percent of the American public since 2000, according to Gallup. 

Four percent of death row inmates may be innocent, according to work published by University of Michigan law professor Samuel Gross. Questions remain whether the US has ever executed an innocent person in the post-1976 era, but the Death Penalty Information Center has a list of 10 people who were "executed but possibly innocent."

Conversely, many prosecutors object to the assumption that exonerees are automatically innocent. 

In Milke’s case, for example, the failure of prosecutors to acknowledge shoddy detective work in the trial was cited by the judge as the reason for her release. It’s always been known that Christopher Milke was killed by two men currently on death row, but the question of whether his mother was a conspirator won’t soon go away, even though the lead detective has been discredited. Prosecutors have offered no apologies, and Milke is suing for remuneration. 

Indeed, even cases steeped in scientific surety, such as DNA proof that someone else committed the crime, are often questioned by governors, who in many states have to pardon a former inmate before they can receive compensation. 

Twenty-five states have specific compensation statutes for exonerees, but many require the defendant prove their innocence. That’s a high bar for many former death row convicts, especially those convicted largely on circumstantial evidence.

Earlier this month in Louisiana, a court exonerated Mr. Ford, who had been convicted in 1983 for killing an elderly woman, after determining that there had been unconstitutional suppression of evidence and lingering concerns about the inexperience of his defense counsel. Now dealing with serious health problems, Ford has met opposition from the state attorney general in his attempts to obtain compensation for his wrongful conviction and lost freedom. "My sons, when I left, was babies ... now they grown men with babies," Ford said earlier this month as he left the Louisiana State Penitentiary at Angola. 

Yet Ford, for one, found an unlikely ally: the prosecutor who helped convict him in 1983. In a column published Friday in the Shreveport Times, A.M. Stroud III questions whether a justice system run by fallible humans can fairly adjudicate death. The case was also shadowed by race, as Ford, a black man, was convicted by an all-white jury. He was released after a confidential informant provided evidence that another man committed the murder for which Ford was convicted.

“Glenn Ford deserves every penny owed to him under the compensation statute," Mr. Stroud writes. "This case is another example of the arbitrariness of the death penalty. I now realize, all too painfully, that as a young 33-year-old prosecutor, I was not capable of making a decision that could have led to the killing of another human being."

Such admissions of prosecutorial doubt are rare, and are often met with official incredulity. "We do not understand Mr. Stroud's opposition to our request that the Louisiana judiciary review the record in this case and make a factual determination in this matter," spokesman Steven Hartman said in an e-mail.

At issue, according to the attorney general's office, is Ford's failure to prove that he did not illegally posses items stolen in a robbery that ended in the murder. 

Jacksonville, Fla., prosecutor Bernie de la Rionda, who has headed several death penalty prosecutions, told the Monitor last year that exonerations are part of the system’s safety valve, but shouldn’t be seen as an argument for abolition. Mr. de la Rionda pointed to one serial killer against whom Florida did not seek the death penalty. The man eventually killed two more people in prison.

But the question of innocence, as embodied by death row inmates set free, continues to agitate the death penalty debate. For one, capital convictions in 2014 marked a 40-year low, suggesting to some experts that juries and prosecutors are responding at least in part to concerns about the potential for wrongful convictions. Moreover, death penalty exonerees have testified in front of lawmakers and governors in all six of the US states, including Illinois and Maryland, that have abolished the death penalty in recent years.

Even if Milke wins her lawsuit and receives compensation for her two-decade imprisonment, her ability to reengage with society likely hinges on perhaps a death row exoneree’s greatest challenge: acceptance of all that’s been lost.

"I live with an abiding sense of loss and a chunk of my heart is gone, but Christopher's spirit is with me always, which is a comfort to the remaining pieces of my heart," Milke said in a statement after her release.