Compensation for the Wrongly Convicted--Another Argument for a Part-Time Legislature (As if we needed another one)

The creativity of Michigan's legislators in coming up with silly ways to spend our money never ceases to amaze. This time they want us to compensate inmates who are wrongly convicted and later freed. If this came to pass Michigan would join a growing number of states that also offer compensation to wrongly convicted criminals who are freed on the basis of DNA testing which, presumably, was unavailable when they were originally convicted. This proposed legislation was brought up in a state House Judiciary committee two weeks ago. The proposal mandates compensation to the wrongly convicted of $50,000 for every year spent behind bars, plus repayment for expenses, lost wages and medical care.

This newly proposed legislation is linked to another fairly recent law affecting the lot of Michigan inmates. In 2001 Michigan enacted a DNA testing law (MCL 770.16) which provides that any person convicted at trial of a felony prior to January 8, 2001 has the right to petition the court for testing of DNA material and, depending on the results, for a new trial based upon the new DNA evidence. The law contains a sunset provision requiring any such petition to be filed before January 1, 2009.

The compensation law would pay money to wrongfully convicted inmates who are freed under MCL 770.16. Leaders of the "Innocence Project" at Cooley Law School in Lansing testified before the Michigan State House Judiciary Committee in favor of the proposed new compensation law. Innocence Project advocates contend that under current law the wrongly convicted inmates receive far less assistance than other inmates when they are released from custody and that they are often ill-equipped to handle life on the streets. The wrongly convicted won't have criminal records and so don't need all the programs to assure their repatriation to society as useful, productive citizens, or so the thinking apparently goes. It seems the real solution would be to offer the wrongly convicted the same services that real criminals get. But that would be too simple.

The Committee also heard testimony from two actual inmates, one of whom would, presumably, benefit from the law. Their convictions were overturned based on DNA evidence that was tested after their original convictions as the science behind the technique advanced. One of the witnesses served eight years on death row before getting sprung (though obviously not in Michigan, which has no death penalty and, hence, no death row).

The cost to taxpayers would be relatively small, according to the bill's sponsor, Rep. Steve Bieda, D-Warren. Bieda makes this claim on the ground that there would be very few ex-inmates eligible. But the small cost needs to be balanced against the “immeasurably huge injustice” a wrongly convicted inmate has suffered, Bieda said.

Since the DNA testing law went into effect, the Cooley Innocence Project has received inquiries from more than 3,500 inmates looking to file DNA evidence petitions. Appeals have been initiated in more than a dozen cases since then, with two convictions being overturned so far.

But DNA testing is hardly infallible. I am reminded of a story back in 2005 relating to the brutal murder of U of M law student Jane Mixer. Mixer was found shot and strangled with a pair of silk stockings in 1969. Re-testing of DNA found on the silk stockings in 2005 revealed something extraordinary. Two DNA matches turned up. One match was returned for Gary Leiterman, the original suspect in the crime. The second match was to a man who was just 4 years old at the time of the 1969 murder. While it is possible that the 4 year-old living in another state at the time participated in the murder of Mixer, it is highly unlikely. (Interestingly, the 4 year-old did apparently grow up to murder his mother, which is why his DNA was in the law enforcement system at all. Weird, huh? You can't make this stuff up). What this does prove, however, is that as advanced as DNA is, it's not infallible.

I can see situations where compensation might be in order. For example, where there is police or prosecutorial misconduct. The Duke Rape Case leaps to mind as a shining example of that scenario. But when everyone is doing his or her job to the best of their ability, with the best technology available at the time (within reason), compensation is unwarranted, particularly in light of Michigan's current budgetary . . . um . . . constraints. This would likely only apply to people convicted years, or even decades ago. Presumably in new cases filed against new suspects, in which law enforcement has state of the art DNA tests available (not to mention the Innocence Project waiting in the wings), false convictions will be few and far between.

Let's do the math just on the unlucky chap who spent all that time on death row who testified before the Judiciary Committee. He was in prison for 9 years. He probably spent another year in the county jail awaiting trial, so let's make it an even 10 years. Under Bieda's plan that means $50,000 per year for being locked up (that's $500,000) plus 10 years of lost income starting in 1998. Median income in 1998 was $38,885, inflation at 3% or so, that's roughly another $400,000. Then we add in medical and expenses (whatever that means). So, we're at roughly $1,000,000 per inmate. Assuming we will be drawing the wrongly convicted from a pool of inmates convicted before DNA testing reached its current state of advancement, that means the recipients of the state's payouts have all been inside the joint for a while. As noted above, Project Innocence has received requests from 3,500 inmates already. They've filed 12 appeals so far. At a cool $1 million or so per person (some will be a lot more, some less), if all 3,500 of those requests turn out to be real, that's $3.5 billion. Even if it's just 10% of that, those are scary numbers for a state in our condition.

Here is another case. In 2002 Eddie Joe Lloyd was freed after DNA testing revealed he did not commit the brutal rape and murder of a Detroit teenager. Lloyd did 17 years for the crime before being freed. Of course, he confessed to the murder. Lloyd was the first person in Michigan to be exonerated on the strength of post-conviction DNA testing. His payout under the proposed law would likely be $2 million plus.

If the issue is reassimilation of wrongly convicted inmates into society (one of the arguments made in favor or the bill), there are cheaper and smarter ways to do it than this law. Obviously if it's a situation of illegal police action or prosecutorial misconduct, then that is a different story. Civil (and even criminal) liability will attach in such cases. In cases involving perjured witness testimony there is also an existing legal remedy. But with all the constitutional checks, balances and protections built into the system, the likelihood of wrongful convictions where everyone is properly doing his or her job, is very slim. Creating a huge windfall for victims who are wrongfully convicted. There are many more reasonable and cost effective ways to compensate the wrongfully convicted.