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Compensation for Exonerees

Written by Dr. Sarah Anderson
Published on March 30, 2023
Research Highlights

Up to 1 in 10 incarcerated people are wrongly convicted and face discrimination after release.

In the U.S., Black people are 7x more likely than White people to wrongly convicted.

Some states have statutory compensation mechanisms for exonerees; more exonerees are not compensated.

About 6-11% of incarcerated people are wrongly convicted.

Self-reporting and DNA analysis suggests that 6-11% of the incarcerated are wrongly convicted (Loeffler 2018, Walsh 2017).

  • 40% are convicted for crimes that did not occur (e.g. arson instead of accidental fire); the rest are cases that lack sufficient evidence of guilt (Weintraub 2020).
Exoneration

Exoneration occurs if the case is reexamined and either (1) the person is found to be innocent or (2) their rights were violated during the proceeding that led to their conviction (Table 1). Exonerees have all rights restored to them and the legal consequences of the conviction are ended (NRE, NIJ).

  • From 1989-2023, 3,284 people were exonerated in the U.S. (NRE 2023).
  • Exonerees spend an average of 9 years incarcerated (NRE 2023).
  • Pro bono state and nonprofit exoneration groups represented 99 of 151 exonerations in 2018 (NRE 2018).

Missouri. There have been 58 MO exonerees since 1989. 32 were Black, 1 Hispanic and 25 white. 54 were male; 4 were female. Most were exonerated for murder charges (34), followed by sexual assault (9), child sex abuse (6), drugs (3), robbery (3) and other (3; NRE 2023).

  • Consistent with national trends, 15 of 58 MO exonerees had DNA evidence (NRE 2023).
Expungement

Expungement, the sealing or destruction of criminal records, varies by state. Not expunging records leads to discrimination and increases the risk of reincarceration (Heilbrun 2020).

  • In MO, records are automatically expunged if there is DNA evidence (RsMO 650.058).
  • Without DNA evidence, exonerees can petition for expungement under certain conditions (e.g., clean record, offense type; RsMO 610.140).

 

Table 1. The most common causes of wrongful conviction (NRE 2023)

Exonerees face mental health challenges and discrimination.

In some states, exonerees may not have access to as many re-entry resources (e.g., job training) as the incarcerated (Kukucka 2020).

Mental Health Challenges

Incarceration is associated with developing depression, bipolar disorder, and PTSD. Concurrently, having a mental health condition increases the risk of incarceration (MOST 2023; 2022).

Exonerees suffer from depression, PTSD, have sleep difficulties, feel mistrustful or paranoid, and feel loss for their old lives.

  • There is not enough evidence to say if these challenges occur at different rates from offenders or non-offenders (Heilbrun 2020).
Employment Discrimination

On average, hiring professionals expect exonerees to be less trustworthy, articulate, intelligent, competent, and will contact more of the exoneree’s references than someone without a criminal history (Kukucka 2020).

Housing Discrimination

There are no differences in housing discrimination between exonerees and offenders (Hamovitch 2023; Kukucka 2021). Exonerees are less likely to hear about the availability of rental units, be offered the unit, or be given a tour compared to those with no criminal record.

Racial Discrimination

53% of exonerees are Black, making them 7x more likely than White people to be wrongfully convicted (NRE 2022).

  • There are fewer Latino exonerees (13%) compared to incarcerated Latinos (19%).
  • Variation is either due to a lower rate of wrongful convictions or greater barriers to exoneration (e.g., immigration status, language barriers; O’Brien 2019).

42% of exonerees receive compensation.

In a study of 1,800 exonerees, 42% received compensation for a wrongful conviction through either (Gutman 2019):

State compensation

38 states, Washington D.C., and the federal government have compensation policies (Innocence Project 2022).

  • MO exonerees with DNA evidence may receive $100 for every day the wrongful con-viction was on their record, up to $36,500 per year until full restitution is made.
  • MO exonerees that take state restitution cannot file a civil suit against the state or any state employees (RsMO 650.058).
Civil cases 

To win civil cases, the wrongly convicted must show evidence that they were intentionally denied due process (e.g., evidence withheld by the police, improper witness iden-tification, coercion, falsified evidence, lack of probable leading to the conviction). Local governments can be sued if they knew that the customs or policies in place could cause wrongful convictions (Gutman 2019).

From 1989- 2018, incarcerated exonerees in the U.S. filed 808 civil cases, with 55% resulting in a settlement or in favor of the exoneree.

  • On average, exonerees were awarded about $305,000/ year incarcerated.
  • Exonerees who sought compensation from the state received an average of $70,000/ year incarcerated but were more likely to be compensated compared to if they filed a civil suit (about 74% vs 55%; Gutman 2019).

 

References

Gross, S. R., Possley, M., Otterbourg, K., Stephens, K., Paredes, J., & O'Brien, B. (2022). Race and Wrongful Convictions in the United States 2022. Available at SSRN 4245863. 

Gutman, J. S., & Sun, L. (2019). Why Is Mississippi the Best State in Which to Be Exonerated: An Empirical Evaluation of State Statutory and Civil Compensation for the Wrongfully Convicted. NEULR, 11, 694. 

Hamovitch, L., Pejic, S., Zannella, L., & Deska, J. C. (2023). Examining the effect of prison time on landlords’ willingness to rent to exonerees: A test of the stigma-by-association framework. Behavioral Sciences & the Law. https://doi.org/10.1002/bsl.2608 

Heilbrun, K., Fishel, S., Lankford, C., & Ratkalkar, M. (2020). Therapy with exonerated clients: review and recommendations. The Journal of Forensic Practice, ahead-of-print(ahead-of-print). doi:10.1108/jfp-02-2020-0004  

Kukucka, J., Applegarth, H. K., & Mello, A. L. (2020). Do exonerees face employment discrimination similar to actual offenders? Legal & Criminological Psychology, 25(1), 17–32. https://doi.org/10.1111/lcrp.12159 

Kukucka, J., Clow, K. A., Horodyski, A. M., Deegan, K., & Gayleard, N. M. (2021). Do exonerees face housing discrimination? An email-based field experiment and content analysis. Psychology, Public Policy, and Law, 27(4), 570. 

Loeffler, C.E., Hyatt, J. & Ridgeway, G. Measuring Self-Reported Wrongful Convictions Among Prisoners. J Quant Criminol 35, 259–286 (2019). https://doi.org/10.1007/s10940-018-9381-1 

National Registry of Exonerations. (2019, April 9). Exonerations in 2018. Retrieved from National Registry of Exonerations: https://www.law.umich.edu/special/exoneration/Documents/Exonerations%20in%202018.pdf 

National Registry of Exonerations. (2023, January 9). Interactive Data Display. Retrieved from The National Registry of Exonerations: https://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx 

O'Brien, B., Stephens, K., Possley, M., & Grosso, C. M. (2019). Latinx defendants, false convictions, and the difficult road to exoneration. UCLA L. Rev., 66, 1682. 

The Innocence Project. (2022, May 27). Key Provisions in Wrongful Conviction Compensation Laws. Retrieved from The National Registry of Exonerations: https://www.law.umich.edu/special/exoneration/Documents/IP%20-%20Key%20Provisions.pdf 

Walsh, K., Hussemann, J., Flynn, A., Yahner, J., & Golian, L. (2017). Estimating the prevalence of wrongful convictions. US Department of Justice, National Criminal Justice Reference Service, document, 25115. 

Weintraub, J. N., & Bernstein, K. M. (2020). Identifying and Charging True Perpetrators in Cases of Wrongful Convictions. Wrongful Conv. L. Rev., 1, 181. 

 

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