Helping the Exonerated

National Law Journal columnist Vivian Berger writes, "Exonerated Prisoners: Improve remedial laws."

The wrongful Convictions Tax Relief Act of 2007, S. 2421, recently introduced by senators Charles E. Schumer, D-N.Y., and Sam Brownback, R-Kan., would furnish certain tax benefits to exonerated prisoners without prior felony convictions. Most important, for 15 years or the number of years of incarceration (whichever is less), it would exempt them from federal income tax liability on the first $50,000 of annual income received as reparations for their imprisonment. The bill is aimed at preventing others from suffering the plight of exoneree David Pope, who ended up owing nearly a quarter of the $385,000 that Texas had awarded as recompense for the decade and a half of hard time he endured before being cleared of rape charges.

It does appear grossly unfair in these circumstances to give with one hand, then take with the other, even when giver and taker are separate government bodies. But worse, for the vast majority of inmates released from confinement on grounds of innocence taxes are the least of their worries. Few possess a right to any indemnity for their horrendous ordeal: Only 22 states, the District of Columbia and the federal government have statutes providing for compensation to the injured party.

In other jurisdictions, to obtain a recovery, the exonerated must try to secure the passage of private laws or bring tort or civil rights actions. Both avenues pose many pitfalls.

And:

Yet general compensation statutes hardly guarantee appropriate redress. First, few such laws have kept pace with the cost of living, and many were miserly from the outset. California, for example, allots $100 per day of incarceration, with a $10,000 maximum award. Thus, a convict unjustly imprisoned for two decades could receive but $500 a year — about $1.37 a day! The prevalence of caps ironically ensures that those who have been most gravely imposed on by the criminal justice system stand to benefit least on a per diem basis. Further, even ceilings exceeding California's often are appallingly low. In Illinois (the locus of 18 death-penalty exonerations), an exoneree who served more than 14 years can get a mere $35,000. (For periods up to five years and between five and 14 years, the limits are, respectively, $15,000 and $30,000.) Montana, uniquely, offers only educational aid, and solely to inmates cleared by DNA testing.

And:

New and amended statutes should follow the model of jurisdictions like New York and Maryland, which lack caps, and should reject elevated burdens of proof and delay-causing bureaucratic obstacles. Society owes a huge debt to exonerees — which, thus far, it has failed even minimally to repay.

Texas now pays wrongfully convicted inmates $50,000 per year of wrongful incarceration, under legislation championed by State Senator Rodney Ellis in 2007.  This matches the compensation available under federal law for those wrongfully convicted in the federal criminal justice system.  Texas law does still have some bureaucratic restraints to the compensation which Senator Ellis hopes to remove in a future legislative session.