Looking Back: Modifying The Innocence Project’s Exoneree Compensation Proposal

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Jeffrey Deskovic Speaking in Davis in 2019 at the Annual Vanguard Event

by Jeffrey Deskovic

“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.

When the average person hears an exoneration story, two thoughts usually run through their mind: Horror, and happiness that the exoneree’s ordeal is finally over. In reality, however, although the physical imprisonment is over, a new ordeal has only just begun. Exonerees are released without assistance and without money. Incredibly, parolees receive more assistance.

New York, along with 27 other states and the District of Columbia, have laws allowing exonerees to seek compensation. However, nothing is provided in the interim. The Innocence Project recently released a report containing a proposal to address this unfortunate situation and, while I agree with some of their points, I must disagree with their main one.

Housing 

Having a place to live is often the very first obstacle encountered by persons released from prison. Some exonerees are fortunate enough to have family or friends waiting for them that they can live with. Although often grateful to have people willing to open their homes to them, feelings of inadequacy, awkwardness, and the lack of independence are as often attendant when adults who, by the natural cycle of life, should be living on their own, are compelled to live with parents or friends.

Scott Fappiano, who served 21 years in New York for rape before being proven innocent, moved in with his mother, in the same bedroom that he lived in prior to being wrongfully convicted. I served 16 years in prison prior to being cleared. Although welcome to live with my mother, she lived in a very rural area. I would have to drive an hour to get to a train station, and bus service was door to door.

There was no opportunity for me to rebuild my life where she was now living. Therefore, when I got a chance to visit someone in Westchester, I seized the opportunity, determined to find a way to live there. I bounced from place to place, with no stability, for nearly a year, at one point almost becoming homeless, before eventually obtaining stable housing.

During that unstable time, research revealed that low-cost public housing had waiting lists years long, and in some instances were closed. One entity even required “chronic homelessness,” being homeless on an on-and-off basis for an entire year, to be eligible.

Additionally, while it is nice when family and friends offer to allow an exoneree to live with them, the bottom line is that this is not their obligation; it is the State’s.

In other instances, family members or friends are not willing to allow the exoneree to live with them or, perhaps, have passed away.

Occasionally, the exonerated are able to get subsidized housing because they qualified through other life circumstances. Many exonerees are unhappy because they are not living where they would like to. The attitude they frequently encounter is, “Accept what you can get and be grateful. What are you complaining about; you’re free, aren’t you?” Many exonerees have told me that it is no small thing, after being imprisoned for many years, to then not be able to live where they would like. It leads to a feeling of not really being free.

The Innocence Project recommends that the State should provide immediate emergency housing slots. I certainly agree with that. Long-term housing should also be provided until compensation is settled. The State should pay the rent, and the exoneree should reimburse the State 30% of their monthly earnings, no matter how low that may be. This would provide living stability. To the extent practicable, the housing should be in a neighborhood acceptable to the exoneree.

In addition, the pool of eligible people for the 80/20 split that landlords in New York City must observe in order to be eligible, should be expanded, thereby increasing available low-cost housing. In terms of federal legislation, the federal government could expand the pool of eligibility for Section 8 certificates to include exonerees.

Recurring Monthly Expenses 

There are recurring monthly cost-of-living expenses such as food, electric, heat, telephone, car insurance, gas, as well as unavoidable miscellaneous expenses. The State should cover these expenses so that the exoneree can experience some stability in his life, not worrying about meeting life’s essentials and everyday expenses. When the exoneree is compensated, the State should be reimbursed these costs. Additionally, the exoneree should receive food stamps.

Rebuilding One’s Life 

The Innocence Project’s report recommends that the State should “provide immediate services, including transportation, education, workforce development, physical and mental health care through the state employee’s health care system and other transitional services. The Department of Social Services or other appropriate entity should be tasked with creating a ‘release plan’ based on the exoneree’s individual needs. Likewise, the State Department of Health is called upon to ensure that health care services are provided free of charge.

The State needn’t look far to meet these immediate needs; many of its own existing programs and services can fill this role. For example, transportation vouchers for public transportation could be issued. If the exoneree is interested in pursuing higher education, the state university system could offer free tuition. Computer classes offered to State employees should be made available to exonerees as well.

I agree with these recommendations but would add a few things. Non-profit and/or governmental entities that offer training in technology, mental health services, vocational training, and job placement, to special classes of people, such as formerly battered women and parolees, should open their programs to include exonerees. Help establishing a social life, and recreational opportunities, should also be provided.

I do not agree with the recommendation that “services that aren’t immediately covered by the State should be reimbursed to the exoneree as part of the compensation package” because exonerees are released with nothing and have a hard time earning very much money. Neither should family or friends be relied upon to front that money, for they may either be unable or unwilling to provide it. Instead, the state should cover the expenses for these services in the first place.

I have a few suggestions to address difficulties in obtaining employment. Just as employers are given a tax break if they hire parolees, so too should a tax break be provided to them if they hire an exoneree. The difference is that I would add the condition that the employment be gainful employment—which I define as providing a living wage. Offering an exoneree a job that pays a small amount of money does not prevent them from living in poverty, rendering them unable to be self-sufficient. If job training is necessary, they should be given a further tax break.

Critiquing The Innocence Project’s Proposal 

The Innocence Project’s recently released report states that since only in a few instances can exonerees file a federal lawsuit, the next option is filing a compensation lawsuit in state court.

“The financial awards exonerees receive through lawsuits often surpass those available through state compensation statutes. However, lawsuits are also more expensive, and part of the award money will be spent on litigation fees. In addition, lawsuits are more time-consuming and take longer to finalize. After years of fighting to prove their innocence, exonerees need a safety net, not another long legal battle. Winning a lawsuit can’t help exonerees find jobs, counseling, medical care, educational aid and other essentials they need for a successful transition.”

Although I will always appreciate the fact that The Innocence Project proved my innocence, that does not mean I must always agree with them, or that I cannot disagree publicly.

Instead, I have become an advocate in my own right, and I owe it to myself, and the people who morally support my work, to speak the truth no matter where it may lead.

The Innocence Project recommendation seeks to replace the existing compensation scheme of filing a lawsuit by replacing it with a flat sum of money; $50,000 a year minimally, to be paid quickly, and various types of immediate assistance. I do not agree with that recommendation.

While I agree with the need for immediate assistance, I think that the State should provide that independent of what is awarded by a court. I think that it is important to have a court assess lost wages, taking into account all of what the exoneree could have earned had they not been wrongfully incarcerated, and how their future wages have been impacted, in addition to their pain and suffering.

Each person’s life circumstances are unique; certainly a person’s lost wages who was a middle-aged adult but had dropped out of high school could not be equal to a person who had attained higher education, and perhaps even was a well-paid employee with a solid future. The same concept applies to impacted future wages. Future earnings are negatively impacted because an exoneree is not able to secure meaningful employment and cannot compete with other job applicants because of their lack of job experience.

The jobs they offer are typically low paying, not what they would have to take if their lives had not been wrongfully impacted. The difference between what one is able to actually earn and what they could have earned is vast, and justice requires that it should be made up. Under The Innocence Project’s proposal, that assessment would not be done, nor would it be reflected in the amount of compensation.

Also, not factored in is pain and suffering. While everybody knows that prison is a living hell, particularly for the wrongfully convicted, the specific amount of harm suffered may vary. A person who was assaulted or abused by the guards or prisoners suffered more than someone who was not. Similarly, an exoneree who leaves prison with health problems has suffered more and will incur more health bills than someone who has not. Additionally, the amount of mental trauma, personal anguish, and other injury, will vary. Age, too, should be taken into account. All wrongful incarceration is horrible; the suffering of someone who was incarcerated in their teens, for example, missing out on normal growth that occurs during formative years, and even the amount of terror that is felt internally, is different than what an adult experiences who was fully developed at the time of the wrongful conviction. These realities would not be taken into account under The Innocence Project proposal.

Turning to the recommended $50,000 minimum, which is adopted from the amount the federal government awards federal prisoners, that sum is wholly inadequate. As mentioned above, compensation is supposed to cover lost wages, impacted future wages, pain and suffering. To begin with, $50,000 is the medium rung in a middle-class occupation. Many people are able to achieve more than that with a good college education and simply a solid job. On this basis alone, that figure is inadequate. The same is true in terms of impacted future wages. Taken together, it is wholly inadequate. Certainly, when one considers pain and suffering, and the loss of contact with many invaluable things, such as births, weddings, proms, the natural course of life, its inadequacy is stark; to say nothing of when all of these factors are combined.

In fact, as I see it, offering this amount is a further extension of injustice and an insult, and not in the best interest of the exoneree, nor society. Accordingly, this major aspect of The Innocence Project’s proposal hopefully would not be adopted by state legislatures.

Lastly, turning to some of The Innocence Project’s peripheral points, in terms of the waiting, if the proposals I have made were implemented, the amount of time between exoneration and compensation would not be a factor, because the exoneree’s basic needs would be met while the litigation proceeds.

Specifically, in terms of the costs of lawsuits, normally paid out of the compensation awarded, the State should cover the costs of litigation, including the standard one-third fee that law firms charge the exoneree. To require an exoneree to pay a law firm one-third of what is awarded to them is to largely defeat the purpose of compensation in the first place.

How can it truly be said that after a court assesses pain and suffering, lost wages, impacted future wages, and comes up with a figure that would financially compensate the exoneree, that they remain compensated if they must give a percentage to the law firm?

As I see it, the exoneree would then be left with a figure that is less than what the court determined was fair. This reform should be enacted into state law and federal law, to cover instances when the exoneree is able to file a federal lawsuit. I would like to add that I consider this standard fee to be inappropriate under the circumstances, regardless of whether it has come to be considered a normal practice. Instead, this should be reexamined.

Secondly, even under the current inadequate system, an exoneree would get more compensation through a lawsuit than through $50,000 per year of incarceration.

In terms of exoneree’s not “needing another long legal battle,” the answer is to try to quicken the time needed to actually try the compensation case, and not give the exoneree a significantly less amount of money that is totally inadequate in the name of expeditious process.

Fixing A Deficient Statute 

There is another deficiency in the New York State Compensation statute. A provision within it states that if the exoneree has contributed to their own wrongful conviction they are ineligible for compensation. To give a concrete example, the New York Attorney General’s Office successfully argued that Doug Warney, who served 9 years for murder prior to DNA proving his innocence and the real perpetrator’s guilt, had contributed to his own wrongful conviction by means of a false confession, even though the “confession” was obtained after 12 hours of interrogation. That confession contained details that had obviously been fed to him by the police, and the fact that he had an I.Q. of 68, which according to the American Psychological Association’s standard would classify him as “moderately retarded,” speaks volumes about the inequity of the law.

Warney’s compensation case was dismissed, and he is now trying to get that ruling overturned. But, if he does not, he will receive nothing from the State. To deny him any assistance to get back on his feet, or for his pain and suffering, is totally unethical, just as it is to deny any exoneree assistance and compensation. There is no legitimate function this provision serves in the law: the fear that somebody will purposefully get themselves wrongfully convicted, serve time in prison, and then clear themselves in order to be in position to sue, is utterly ridiculous. Accordingly, this flaw in the statute should be immediately fixed, along with a provision that would allow exonerees whose compensation case has been previously dismissed under this provision, to be reopened.

Finally, I believed that Government should always issue an apology when the exoneree is cleared, and, The Innocence Project’s report agrees with this.

“Jeffrey Deskovic, Esq, MA, is an internationally recognized wrongful conviction expert and founder of The Jeffrey Deskovic Foundation for Justice, which has freed 9 wrongfully convicted people and helped pass 3 laws aimed at preventing wrongful conviction. Jeff is an advisory board member of It Could Happen To You, which has chapters in CA, NY, and PA. He serves on the Global Advisory Council for Restorative Justice International, and is a sometimes co-host and co-producer of the show, “360 Degrees of Success.” Jeff was exonerated after 16 years in prison-from age 17-32- before DNA exonerated him and identified the actual perpetrator. A short documentary about his life is entitled “Conviction“, and episode 1 of his story in Virtual Reality is called, “Once Upon A Time In Peekskill“. Jeff has a Masters Degree from the John Jay College of Criminal Justice, with his thesis written on wrongful conviction causes and reforms needed to address them, and a law degree from the Elisabeth Haub School of Law at Pace University.  Jeff is now a practicing attorney.

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About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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