Wrongful Conviction and Compensation.


Great article GFactor. Thanks.

I was having a conversation about the nature of memory with Mrs essell and we were discussing a case of 12 or so people wrongly convicted of child abuse due to faulty memory. I was thinking “I wonder if they get compensation” and this landed in my inbox. Impeccable timing.

I gotta asking one thing, due to the lack of references at the bottom of the page. Where did Professor Gross get the numbers to say:


He seems to be saying that there were one hundred innocent people on death row between 1989 and 2003 and I’m wondering where that figure came from.

Here is a link to Gross’s article: http://www.law.umich.edu/newsandinfo/exonerations-in-us.pdf

Here is a list of references, btw:
Armour, Stephanie, “Wrongly Convicted Walk Away With Scars,” USA Today, Ocober 13, 2004: http://www.usatoday.com/money/workplace/2004-10-13-dna-exonerated-jobs_x.htm

Bernhard, Adele, "Justice Still Fails: A Review of Recent Efforts to Compensate Individuals Who Have Been Unjustly Convicted and Later Exonerated, " 52 Drake Law Review 703 (2004): http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1004&context=lawfaculty

Bernhard, Adele, “When Justice Fails: Indemnification for Unjust Conviction,” 6 University of Chicago Roundtable 73 (1999): http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1006&context=lawfaculty

Blum, Karen & Urbonya, Kathryn, “Section 1983 Litigation,” Federal Judicial Center 1998: http://www.fjc.gov/public/pdf.nsf/lookup/Sect1983.pdf/

Center on Wrongful Convictions, Northwestern University School of Law: http://www.law.northwestern.edu/depts/clinic/wrongful/index.htm

Costa, Jason, “Comment: Alone in the World: The United States’ Failure to Observe the International Human Right to Compensation for Wrongful Conviction,” 19 Emory Int’l L. Rev. 1615 (2005)

Davenport, Christian, “Putting A Price on Innocents’ Lost Years,” The Washington Post, October 4, 2004, Page A01: http://www.washingtonpost.com/wp-dyn/articles/A4412-2004Oct3.html

Doyle, Charles, Federal Habeas Corpus: A Brief Legal Overview, CRS Research Report RL33391, April 26, 2006: http://www.fas.org/sgp/crs/misc/RL33391.pdf

Frontline: The Burden of Innocence, Air Date: May 1, 2003: http://www.pbs.org/wgbh/pages/frontline/shows/burden/

Gross, Samuel, et al., “Exonerations in the United States 1989 through 2003,” 95 J. Crim. L & Criminology523 (2005): http://www.law.umich.edu/NewsandInfo/exonerations-in-us.pdf

The Innocence Project: http://www.innocenceproject.org/

International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976: http://www.unhchr.ch/html/menu3/b/a_ccpr.htm

Life After Exoneration Program: http://www.exonerated.org/j/index.php

Liptak, Adam, “Study Suspects Thousands of False Convictions,” New York Times, Apr. 19, 2004, at A15: http://www.nytimes.com/2004/04/19/national/19DNA.html?ei=5007&en=b45bbe6c44ec0de6&ex=1397707200&partner=USERLAND&pagewanted=all&position=

Limone v. United States (D. Mass., July 26, 2007): http://pacer.mad.uscourts.gov/dc/opinions/gertner/pdf/limonefinalalljuly26.pdf

Master, Howard, “Revisiting the Takings -Based Argument for compensating the wrongfully convicted,” 60 N.Y.U. Ann. Surv. Am. L. 97 (2004): http://www.law.nyu.edu/pubs/annualsurvey/articles/60%20N.Y.U.%20Ann.%20Surv.%20Am.%20L.%2097%20(2004).pdf

National Conference of State Legislatures, Comparison of State Post-Conviction DNA Laws: http://www.ncsl.org/programs/health/genetics/DNAchart.htm

Paulson, Amanda, “What Do States Owe The Exonerated?” Christian Science Monitor, May 30, 2007: http://www.cbsnews.com/stories/2007/05/30/national/main2867113.shtml

Radnofsky, Louise, Compensating the Wrongly Convicted, The American Prospect (web only) July 25, 2007: http://www.prospect.org/cs/articles?article=compensating_the_wrongly_convicted

Taylor, Stuart, “Innocents in Prison,” The National Journal, August 6, 2007, reprinted in theatlantic.com: http://www.theatlantic.com/doc/200708u/innocents-in-prison

Tsai, Michelle, 18 Years in Prison? Priceless. How do they figure the payouts for people who were wrongly convicted? Slate.com, May 18, 2007:http://www.slate.com/id/2166483/

United States Department of Health and Human Services, National Policy Conference: From Prison to Home: The Effect of Incarceration and Reentry on Children, Families, and Communities, January 30–31, 2002: http://aspe.hhs.gov/HSP/prison2home02/conf.htm

Wives stand by their (wrongly convicted) men, CNN.com, August 20, 2007: http://www.cnn.com/2007/US/law/08/20/wrongful.convictions.ap/index.html

Great report, interesting topic. So, how did the OP get a glimpse into the near future?

  1. Thanks.
  2. Strange Date on Staff Report

Considering how many people always get confused by the Staff Report date, maybe it should read “For publication on (date)”, which would then be changed to just the date when the main page properly links to it. How many people have to ask about it before the matter is consistently clarified?

I agree it should be addressed. I think the people with authority over such things already know, but just for good measure, I’ll bring it up.

Heard about this case on my way home from work: Cleared Terror Defendant Sues Prosecutor

Richard Jewel passed away yesterday. He wasn’t convicted of anything, but he did pursue libel cases against a number of media folks. He did it to clear his name. RIP.

I read that as saying that we can’t be confident that we’ve identified all of the people wrongly convicted; if we assume that we identified even three-quarters of the wrongly convicted on death row (an assumption that is far too generous, in my opinion), that would mean that 25 people were put to death by the government for crimes they didn’t commit.

Frankly, that’s a horrifying thought.

Gfactor, very nice job. I agree that the Tennison case is particularly disturbing, from what I read. The government should have been estopped from taking an inconsistent position, and it’s disappointing that they weren’t. Let’s hope our supremes set it right.

As to your last sentence – would the Guantanamo prisoners sue under 1983? Have there been cases filed against the federal government for wrongful conviction, and what have the results been?

Short answer. Probably most of the defendants would be federal–not state agents. So not Section 1983, but *Bivens * if it’s a constitutioal violation, and Federal Tort Claims Act type stuff if it’s a non-constitutional tort, I think.

I just found this http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/95-717_A_12032001.pdf It has a pretty good discussion of some basic principles. I’m sure there are some pretty strong defenses, exceptions, and immunities that they’d have to overcome.

There’s a link on Section 1983 in the references I posted above.

The only one that I know of is the one I linked to above. http://jurist.law.pitt.edu/paperchase/2007/08/former-detroit-terror-suspect-files.php (another article, same guy)

He’s suing a federal prosecutor, a federal security officer, and an FBI agent for withholding exculpatory evidence.


The judge apologized to one of the other defendants: http://jurist.law.pitt.edu/paperchase/2007/08/former-detroit-terror-suspect-files.php



In the UK we seem to have a system which, where it does compensate wrongly imprisoned persons, deducts expenses for life necessities, or board & lodgings, from the amount awarded. The terminology will depend on one’s point of view.

Does this happen in the US?

Not to my knowledge. Although in some jurisdictions, IIRC, prisoners can be charged for room & board while in prison. I guess it’s possible that some system would demand compensation from a prisoner who couldn’t pay while in prison. But I never ran across such a case.

Of course, here, the awards are subject to taxation. :smiley:


Good heavens, that seems intuitively wrong. Seems to me that there ought to be some kind of equitable bar (unclean hands, maybe?) to the government wrongfully imprisoning someone and then trying to charge for the cost of the wrongful imprisonment.

It’s a good thing we don’t hang people any more.

If we did, executed prisoners subsequently exonerated might have to pay for the rope.

Maybe this is a way we can give them back the time served!

I remember reading that after the Chinese government rounded up, tried and executed several dozen people affiliated with the Tiananmen Square freedom movement in 1989, their families were billed for the cost of the bullets used to shoot them. Jeez, talk about adding insult to injury. :mad:

Great report, Gfactor. Ohio is, as you note, one of the minority of states which has a compensation fund for those wrongly imprisoned. I don’t believe there’s an upper limit as to what can be paid out. Ohio law also requires that felons be permitted to independently test any DNA evidence from their cases still in state custody.

Thanks. Yes. Here is the Innocence Project search eninge: http://www.innocenceproject.org/news/LawView2.php

According to this, Ohio provides the following compensation:

And here are the Ohio statutes:

2743.48 and 49 deal with the actual compensation claim and the auditor’s duty to adjust the cap, but for some reason, the board doesn’t like it when I paste the sections in. http://codes.ohio.gov/orc/2743

The main reason officials involved have no remorse is that the inmates are often career criminals that are dangerous to the public. They have access to the arrest records that the press does not, so they can see all the things that never went to trial. A guy may be guilty of assault and robbery, plea bargain for fencing stolen goods, and when that is overturned on a technicality he’s “innocent” but the cops know better.

I’m not sure what that has to do with this. Here, we’re talking about people who have served time for crimes that they did not commit. These aren’t people who got off on “technicalities,” unless you include among the technicalities, “didn’t commit the crime.” That’s a bit of a stretch. In fact, you could argue that these folks were convicted and imprisoned based on technicalities.