The number of individuals released from prison following wrongful conviction and eventual exoneration is staggering. Since the first DNA exoneration 25 years ago, 321 individuals from 38 states have been exonerated through the use of DNA evidence. The wrongs that they suffer do not end when they are released after years of imprisonment. These individuals have already endured the hardship of prison life, loss of freedom, and isolation from family and loved ones, and commonly are released with no money, housing, healthcare, insurance, means of transportation, employment, or job skills.
It is inarguable that states have an obligation to restore the lives of these individuals who were wronged by the legal system. But how do you put a price tag on years of prison life? And as importantly, how can those who are released after exoneration receive compensation shortly after release, when it is urgently needed to cover basic needs and start over? Fortunately, there are answers.
Connecticut has been in the forefront of post-exoneration compensation issues. The Legislature led the way when it approved, through a special act, a $5 million award – believed to be the largest-ever out-of-court wrongful imprisonment settlement by a state government – to James Tillman. Tillman was wrongly convicted of rape and exonerated after 18 1/2 years – the first in Connecticut cleared by DNA evidence.
This private act was a relatively quick fix to assist a single individual, with just over a year elapsing between release and receipt of the compensation. Private acts of legislatures, however, are not the long-term solution to compensating those who are exonerated. They are rarely uniform and are typically available only to those who have found the right political connections and lobbying team. To assist Mr. Tillman, attorneys from McCarter & English, including me, identified and assembled a powerful group composed of a former chief public defender, local political and community leaders, lobbyists, accountants, financial planners and attorneys, all of whom worked pro bono on the project. This group held private fundraisers for Mr. Tillman, helped him secure a job, and taught him how to manage and invest money. Few in his situation have the benefit of such a robust, effective team of advocates.
Before Mr. Tillman had his compensation check in hand, we started to think about the next similar case and the one after, and we realized that there had to be a method better than ad hoc legislative intervention. Part of the issue, we realized, was that the amount of compensation could turn on the personality of each exonerated person, which struck us as inappropriate and wrong minded. As a commercial real estate and land use lawyer I have little contact with convicts – rightly or wrongly accused – but it was apparent that Mr. Tillman was far better positioned to state his case than many others in his shoes would be. Entirely lacking in bitterness and laden with gratitude to those who stood by him, he clearly presented as someone well positioned to convince others that he deserved recompense – a trait that others might lack, to their unfair detriment. Fortunately for those who will follow Mr. Tillman – and there will be others – his case gave us the opportunity and momentum to advocate for a fairer compensation procedure less driven by resources or personalities.
Most states and the federal government have adopted statutes that include formulas that determine compensation awards. They simply multiply the number of years of wrongful incarceration by a fixed, per-year compensatory amount. For example, the federal government provides $50,000 for each year of wrongful incarceration, and up to an additional $50,000 for each year spent on death row. If Mr. Tillman were to collect under that statute, he would have received $900,000 for the 18 years he served. The formulas vary widely. In California, the state compensates at $100 per day – $36,500 per year – but in Louisiana the rate is compensated $25,000 per year not to exceed a total of $250,000.
To its credit, Connecticut rejected this kind of formulaic structure, instead heeding our recommendations and establishing one of the only compensation statutes in the country that neither relies on a formula nor limits the amount that may be awarded. In rejecting the national norms, Connecticut allows individuals to appear before the state’s Claims Commissioner and have a brief hearing solely to determine damages. This system represents a vast improvement over the formulaic approach because there is complete discretion in the compensation sum and the individual has an opportunity to explain the unique harms that he experienced in prison. These often include the hardships of being isolated from family, witnessing unfathomable violence and receiving sub-par medical care, among others.
This procedure is not perfect in that it is time-consuming and delay laden. There is a time lag while the claim is prepared and supported by economic studies that seek to put a dollar figure on lost wages and opportunities. Then, there is the time necessary to schedule and conduct the hearing, and then for the Claims Commissioner to recommend an award. If the award is larger than $20,000, it requires approval by the Legislature, which may reject or modify the sum that the Claims Commissioner recommends. Connecticut’s legislature is a part-time body, so it can be months between a hearing and legislative approval. All of this leads to a large span of time between an individual’s release from prison and his or her receipt of a compensation award – sometimes three years or even more.
So how do these individuals survive for the years between release and compensation? In witnessing Mr. Tillman’s transition to life outside of prison, we identified the distinct problems that exonerated individuals face in surviving and restarting their lives during this period of time. An exonerated individual has immediate needs upon release: housing, employment, development of workforce skills, health and psychological care, clothing, food and household items. All require money and that means immediate funds, because exoneration notwithstanding, most lenders will not view recently released prisoners as creditworthy because they have little or no credit history from their period of imprisonment. With few or no financial resources, most are forced to rely largely on family – where resources may be lacking – and whatever community support they can muster. Mr. Tillman worked during that first year (and continues to work now), but he struggled to get by on his own prior to receiving his compensation. He, like others in his situation, was anxious to start his life and maintain his independence, but he was dependent on family and private fundraisers until he found a job and saved enough to secure housing.
How would the next person make it through the transition period? What if he or she were unable to live with family and rely on them for support? Would these exonerated individuals be a drain on public services and their family, or worse, end up destitute and forced to live in poverty after suffering injustice from the judicial system? To bridge the gap between release and receipt of a compensation award, we established the Connecticut Innocence Fund. This fund is a collaboration between two private agencies, The Connecticut Bar Foundation (CBF) and Community Partners in Action (CPA).
The CBF is a nonprofit organization that works to ensure that the state’s legal system is available to all, regardless of power or resources. The CBF agreed to invest private donations that will be loaned to individuals released after wrongful conviction. CPA is a nonprofit organization that, among other initiatives, runs reentry programs for individuals released from prison. CPA agreed to administer the loans to exonerated individuals. A committee reviews applications for financial assistance and approves disbursements. To assist with household budgeting, at the discretion of the committee, the disbursements can be made on a monthly basis and directed to landlords or other service providers. Those funds are then repaid to CBF after the state issues compensation, meaning that those funds will be available as loans to others who are released after wrongful incarceration. Since 2012, the Connecticut Innocence Fund has administered close to $45,000 in loans to exonerated individuals.
The Connecticut Innocence Fund is one way to provide fair, proper, and appropriate resources to cover the immediate needs of those who are released into communities after experiencing such terrible, devastating wrongs. The loan system is a benefit to the public in that it reduces recidivism and reliance on public and social services by individuals who are likely to eventually receive large compensation awards. This model can and should be replicated in other states.
More information about the Connecticut Innocence Fund is available at: www.ctbarfdn.org/ctinnocencefund.