Burden of Innocence
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> interview: adele bernhard

[... How did you become interested in the issue of compensation?]

I was following the cases where people have been exonerated. ... I wondered whether they were able to win lawsuits and get some kind of compensation to make them whole, or to indemnify them for the years that they had lost and the suffering that they had endured. So I started researching the issues, and I found a couple of things that were surprising. What I really found is how very difficult it would be for any of these people to be indemnified, and I found that I wasn't the only person who had thought of this; scholars have been urging the passage of special compensation bills for a hundred years. Yet we haven't moved too far in that direction.

[Now you think the issue is more urgent?]

Yes, I think it is more urgent, because there are more people being exonerated. We also know -- with a certainty that we didn't have in the beginning of the century -- that people who are really innocent people are really convicted. I think when the first scholars started urging the passage of compensation bills, there was still some doubt in the public's mind that innocent people could really be convicted.

Money is very symbolic in America. Money means everything. Yet here are people who have been hurt as an inevitable byproduct of the criminal justice system, and no one's taking responsibility for them.

Now we know that, not only can it happen, but that it does happen, and it's been happening with an uncomfortable degree of frequency. So, yes, it seems to me that there's many more emotional reasons for passing this compensation, because we can really be sure that innocent people have been locked up and have spent time in jail for crimes they didn't commit. ...

[What's the situation now?]

There are several different approaches that people who have been exonerated can take to try to get some kind of damages. On the one hand, they could bring a civil lawsuit. That has some problems and some benefits, but overall, it's very difficult. They could try to get a state legislator to introduce a special bill in their state legislature for them; that's a political issue, which also has some problems. The third approach, if they're in a state where there is a statute that applies to everyone who's been exonerated, would be to bring a claim under the state statute.

Bernhard, an expert on compensation for the wrongfully convicted, is a professor at Pace University's Law School in White Plains, N.Y. Here, she discusses the history of compensation law, why state legislatures often resist passing compensation bills, and how she thinks society perceives as "contaminated" those people who have been in prison -- no matter how definitive the evidence proving their innocence. This interview was conducted on Dec. 4, 2002.

So there's three possible approaches, but those three approaches only exist in 15 different states. [In] most states, you could only try to bring a lawsuit or try to get a private bill passed. Most states don't have a special indemnification statute that's specially devised to help people who are in this situation, who've been convicted and later on been exonerated. So that's sort of the overall situation across the country.

Everybody could try to bring a lawsuit; very few people will be able to succeed. Everyone could try to get a legislator interested in them and try to get a bill passed to give them money; very few people will succeed. In those states where there are these statutes, I think you've got a better chance of succeeding; I think it's an easier way to go. But there are very few states that have these statutes. ...

There are so many bills each year that are passed that have something to do with criminal law, with criminal procedure, criminal sanctions. ... Every year, our elected representatives go into their houses of the legislature and come up with new kinds of criminal justice bills. This would be something that could be easily attached to any numbers of those bills. I would think there would be very little opposition, and it would be a humane act to engage in. Of course, I think that they ought to do that, and I'm disappointed that it hasn't happened. ...

One of the reasons that I've been in favor of enacting compensation statutes, where people could bring a claim based on their exoneration, is because lawsuits are very difficult for individuals to win. There's a couple of reasons that they're difficult to win. But the primary one is that our whole tort system and our civil rights system predicate getting an award of damages on locating who's at fault. The systems depend on finding fault, so you have to pick out whose error it was, and in many of these cases there's a multiple of errors --the prosecutor, the police, the defense attorney.

In addition to not being able to pinpoint whose fault it was that you were wrongly convicted, many of these people are protected by doctrines of immunity. So you can't sue the prosecutor, if he was doing his job in prosecuting your case. You can't sue the police, either, as long as he or she was doing their job in investigating your case. ...

Now of course there are some situations where the prosecutors and the police have acted egregiously, where they've done more than make a mistake -- where they've buried evidence, they've convinced people to lie, they've tortured people until they've made confessions. In those situations, people who have been exonerated will be able to bring lawsuits, and they will be able to succeed. But those aren't the majority of the cases. ...

Just practically, lawsuits take a very long time to litigate. ... Many, many years may go by where you're trying to get discovery; you're trying to find witnesses; you're trying to build a case. Meanwhile, you don't have anything.

[Which state has the best statute?]

The one that we have in New York is a pretty good model. It was very thoughtfully drafted. In the early 1980s, when Governor Cuomo was in power. A number of these private bills had been passed by the legislature and arrived on his desk. Different people had been able to convince legislators that they were innocent, that they'd been wrongly convicted and that they deserved some kind of money.

The governor said, "Well, I don't know how you've evaluated these claims. This seems to be more of a popularity contest. One person's been able to convince people that they deserve money; another person hasn't been so successful. I don't know whether the one who's convinced people is really innocent and deserving, and whether the one who fails should have failed. I would like to see a procedure where there is a court that actually evaluates the evidence."

So he set up a law review commission. He appointed a number of different people to serve on this commission, and to come up with a mechanism for evaluating these claims. They spent quite a bit of time thinking about how to do it. They thought perhaps ending some of the immunity protections for the district attorneys would make it easier to win a lawsuit. That was a potential approach.

They rejected that. They came up instead with a mechanism that we have. [When] you file a claim in the Court of Claims, you must show that you were convicted, that you spent time in jail, and that the conviction was vacated for a reason consistent with innocence. You must also be able to show that you didn't bring about that conviction on your own, and you got to show that you're innocent.

So it's difficult, but clearly not impossible. A number of people have been able to get claims through this mechanism. I think that it balances a number of different concerns. It works to screen out claims that shouldn't win, and yet, it's available for people who are deserving. So I think it works pretty well.

[What claims in New York have been accepted?]

It has screened out most of the claims, But if you go and read the decisions in the Court of Claims, you can see, for the most part, why they were screened out, and you probably wouldn't disagree with the judges. Now there are a couple where I felt that the judge was unduly harsh. The one area in which I think the legislature in New York might want to consider changing our statute is around the question of, what does it mean by "you didn't do anything to bring about your own conviction"?

Some of the courts have said, "Well, you made a confession. And because you made a confession -- even though we now know that you are innocent and that confession is false -- that confession itself should prevent you from recovering."

I'm wondering now whether that's really too harsh, especially in light of some of these new exonerations, where it's completely clear that people have confessed to things that they didn't do. We're beginning to understand more and more why that happens.

[The pardon process. How does that affect compensation?]

Certainly you're in a better position in almost all of these states to get compensation if you've been pardoned. But of course it's very difficult to get pardoned, and that's also political. Some governors feel very comfortable pardoning people; other governors in the states don't at all. Some of them just make a rule for themselves -- which is a political statement -- that they don't intend to pardon anybody for any reason, and they don't ever have to make any decisions and worry about making any mistakes. So that's a separate issue.

But as to your underlying question -- which is a really good one -- which is, if you've been accused of a crime, you're supposed to be presumed innocent until proven guilty, right? So it would seem that if you've been convicted and then your conviction is taken away, you should be back where you started -- which is innocent until proven guilty.

But in fact that's not really true, because when you try to bring a claim under this Court of Claims act, they say, "Well, you have the affirmative duty to prove your innocence." That's the way the statute's written. So the fact that your conviction has been wiped away doesn't immediately entitle you to compensation; you must do more. You must prove that you are innocent.

So what that does, in a way, is it says to the public that someone who's been convicted -- even when they're exonerated -- they don't look completely innocent to the public. I think that that's actually one reason why it's been so difficult to get these statutes passed in different states.

I'll tell you, when I started realizing how difficult it was going to be for people to get any kind of compensation, I wrote this article where I talked about all the problems with the lawsuits, the problems with getting private bills passed. I compared all the statutes that existed. I went back, and I saw that, for the last hundred years, other people have been raising the same issue and have been urging the states to pass legislation.

I looked and I saw that countries in Europe all have statutes so that people who've been convicted can get some compensation. Countries in South America had these statutes on the books for 60 years. So I thought, "Wow, look at this. I found something that needs to be done. I've got logical reasons why it should happen. There are emotional reasons why it should happen. This is going to happen. As soon as I write this article, we're going to see all kinds of change in these state legislatures."

But of course, that hasn't happened at all. So I've been [wondering] why we can't get these statutes passed, because people have been trying. There's a bill pending in Massachusetts. There's been discussions of bills in Oklahoma or in Louisiana, and other states where there have been notorious exonerations. Yet these bills seem to stall. They don't seem to fly through the way that I thought.

When you think about why that is, you realize that, once someone's been arrested and charged with a serious crime -- even if they're acquitted at trial, or if their conviction is wiped away later on -- they're never exactly back where they started from. The public feels that once you've been touched by the criminal justice system, you're contaminated in some kind of way, and it's almost impossible to wipe that slate clean. ...

[In terms of reentering society, what are the problems? What can help these men? Why are their records not expunged?]

At the moment, no one's taking responsibility for them, which is a very large problem, because there's nobody ... to help them reintegrate into society. There's no one taking responsibility to show them how things have changed, or how things work or how to communicate. I mean, this is a complicated world that we live in. There's lots of challenges. ... We're talking about people being released from prison who have been kept away from the world for 10 or 15 years. It's almost unimaginable to think of how you would cope with such a big difference.

What we generally do in America when someone's been hurt is, we give them money. We use money. Money is very symbolic in America. Money means everything. If you earn money, you're a success. If you don't earn money, you're not a success. If you get hurt, you get money. Yet here are people who have been hurt as an inevitable byproduct of the criminal justice system, which is a government benefit that we all are entitled to and expect. These are sort of like the collateral consequences, and no one's taking responsibility for them. I just found it amazing and very sad. ...

[Talk about the stigma against compensation bills.]

I think there are two types of resistance. One is the purely financial, and that is raised every time these bills are introduced. "This is going to open the floodgates. We're going to be paying millions of dollars." But of course that isn't based on any facts at all.

First of all, there are very few people in this situation. Very few people have been exonerated. State by state, it's a very small number in each state, so it would not be a large impact on any state budget. Compared to claims for police brutality or just plain accident claims, it's a minuscule amount.

Opposition that comes from people feeling, "Why should the general public have to pay for this? This wasn't the general public's fault. This was the fault of the lawyers who tried the case, of the district attorneys who prosecuted the case, of the judges who prosecuted the case." So some people could feel, "Why do we have to pay, why don't they pay -- ... the lawyers, the jurors, the judge, the people who made the mistake?"

I have read some people's positions that suggest that the lawyers, judges, and district attorneys ought to contribute to a fund out of which these payments could be made. That's not a terrible idea, but on the other hand, we're not talking about such huge amounts of money that it would really impact the state coffers one way or another.

So where does the real resistance come from? I think it's less resistance, and more lack of motivation -- that no one really cares about creating these statutes. That people who have been exonerated don't have a political voice, don't have a constituency. There is nobody out there other than maybe you, me, and a handful of other people who really care about these issues. So there's no motivation for introducing the bills, and the politicians don't feel that they'll get anything out of it; that it won't be something that they can go back to the people who voted for them ... [and get] any votes. ...

[What is the history of compensation law?]

... I can't give you a definitive answer, because I'm actually relying on other people's research. I haven't gone and done this myself. But I found when I started doing research in this area that starting in the early part of the twentieth century, about 1910, people started being concerned about this issue.

The very first statute like this was passed in Wisconsin, I think as early as 1918, something like that. Then you'd see California in 1940 and then you'd see Maine in 1980 and New York in 1984. So it's been in sort of fits and starts. But there hasn't been a progressive movement towards getting statutes enacted ... and there still isn't.

One thing that the federal government could do -- something that was contemplated by the Innocence Protection Act -- I'm not sure that that's going to go anywhere, now that we've had such a change in the government -- is the government could give the states an incentive to pass this kind of compensation statute.

That's what happened, for example, in the victims' compensation arena. If you are the victim of a crime, if someone burglarizes your house and breaks the locks, you can file a claim with your local New York State Victim's Compensation Board. You show your complaint that you filed with the police. You show the receipts for the damages and what you had to spend to repair that door, and you will get an award of compensation.

Every state in the nation has a victim's compensation board. All of the laws setting up those boards were enacted in two or three years' time, because the federal government passed a law that said, "We'll give you some money to help. If you want the money, here are the things you have to do." That successfully spurred interest in creating this. ... Now the federal government could do a similar thing in this situation. ...

[Do you think it's essential that they're given money, as opposed to other sorts of compensation?]

Well, money is never the most important thing in anybody's life. It's never what makes your life work, and it never is what makes you really feel happy. But money is what we give people to substitute for those things that we can't make sure we can provide for people. It's what we do when we're at a loss as to what else we can do. It's what we do in other situations where people have been hurt.

It certainly is not going to fix anything, but it's certainly going to also give people a good start and a base from which they can move. If they haven't been able to go to school, they could live on that and go to school. If they haven't been able to find a place to live, it'll at least give them a platform from which they can attempt to regain their lives and move back into the world. ...

[These people want apologies as well.]

That's right, that's right. Because we don't do that, to me, that's even more of a reason why we have to make sure that people can be successful with these claims and at least get some money, because that is, in a way, a substitute for that little badge. If you can say, "Yes, not only was I exonerated, but the court awarded me a million dollars for the 15 years that I was in jail," the neighbors are going to start to believe. ...


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published may 1, 2003

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