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Paying the Price for Injustice: The Case for Enacting a Wrongful Conviction Compensation Statute in Arkansas

By · December 11, 2015 · 2015 Ark. L. Notes 1814
In categories: Criminal Law, Extended Article, Featured Story

“[I]f, in spite of [the] practical precautions against error, an innocent man is convicted of a crime, and it is later established that he had no connection with it, the least that the state can do to vindicate itself is to grant him an indemnity, not as a matter of grace and favor, but as a matter of right.”[1]

I.  Introduction

Wrongful convictions have long been considered to be “among the most shocking . . . and . . . glaring of injustices.”[2]  In 1932, Edwin Borchard, a prominent law professor, published his seminal work, “Convicting the Innocent,” which surveyed sixty-five cases of wrongful convictions throughout the United States.[3]  Professor Borchard concluded the State had a duty to “reimburse the innocent victim . . . for the loss and damage suffered” once it discovered the victim had been wrongfully convicted.[4] Professor Borchard reasoned that compensation should be afforded to innocent victims of wrongful convictions because “society rather than the individual should bear the risk of such tragic mistakes in the administration of criminal justice.”[5] Ultimately, Professor Borchard proffered a model compensation statute which could be used as a basis for similar legislation to be adopted by the states and the federal government.[6]

Despite the efforts of Professor Borchard and other advocates, statutes providing compensation for the wrongfully convicted have not attained universal adoption. Arkansas, as well as at least twenty other states, fails to provide compensation for victims of wrongful convictions upon their exoneration and subsequent release from prison.[7] Although money alone cannot erase the damage inflicted upon someone who has been wrongfully convicted and imprisoned for a crime she did not commit, compensation “does provide a springboard from which to begin life again.”[8] Moreover, compensation statutes provide a more efficient alternative for exonerees to receive compensation than lawsuits and private legislative bills.[9]

This paper focuses on the need for Arkansas to adopt a statute which would provide compensation for the victims of wrongful convictions. Part II discusses the case of Gyronne Buckley, a former Arkansas inmate who was wrongfully convicted yet ultimately denied compensation. Part III of this article will discuss the prevalence of wrongful convictions, as well as some of the common causes of the phenomenon. Part IV addresses the inadequacies of existing remedies, such as private lawsuits and private compensation bills. Part IV then argues that wrongful conviction compensation statutes are the best remedy available to exonerees and examines several statutes enacted by states bordering Arkansas, the federal government, and model legislation promulgated by the Innocence Project. Part V will then propose several recommendations to be included within a wrongful conviction compensation statute in Arkansas.

II.  Gyronne Buckley: A Prime Example

In 1999, Gyronne Buckley was arrested for allegedly selling crack cocaine to Corey Livsey, an undercover informant under the supervision of South Central Drug Task Force Agent Keith Ray in Arkadelphia, Arkansas.[10] Livsey, a three-time felon,[11] was arrested by the Arkadelphia Police Department for shoplifting prior to his alleged dealings with Buckley.[12] In exchange for dismissing the shoplifting charges, Livsey agreed to purchase drugs from Buckley at Buckley’s residence under the direction of Agent Ray and several other Drug Task Force agents and Arkadelphia officers.[13]

The controlled drug purchases occurred on two consecutive days.[14] Livsey, who was wearing a concealed microphone, allegedly purchased crack cocaine from Buckley in exchange for forty dollars.[15]  The police subsequently arrested Buckley for selling cocaine to Livsey and searched his home, finding “aluminum foil with marijuana seeds in it, a pill bottle with white residue in it, and a plastic sandwich bag.”[16]

Buckley was subsequently charged with “two Y felonies for the delivery of a controlled substance.”[17] At trial, the prosecution largely relied upon the testimony of Livsey, Agent Ray and the other officers and agents involved in the undercover transactions.[18]  Despite his status as a first-time offender, Buckley was sentenced to two life sentences “for allegedly selling an amount of crack cocaine that weighed less than a restaurant sweetener packet.”[19] The trial court ordered the sentences to be served consecutively.[20] An appellate court upheld the conviction on direct appeal, but remanded the case for resentencing.[21] Buckley ultimately received a sentence of two consecutive terms of twenty-eight years imprisonment.[22]

The effort to exonerate Buckley began in earnest after one of the testifying agents acknowledged the existence of a previously undisclosed videotape during an evidentiary hearing in 2005.[23] After receiving the videotape, Buckley’s attorneys discovered “more than three dozen discrepancies between Livsey’s statements on the videotape and his testimony at trial.”[24] The videotape revealed that Livsey, Ray and other agents fabricated evidence and committed perjury in order to ensure Buckley’s conviction.[25] Specifically, the videotape showed officers preparing Livsey for trial; Livsey failing to remember the details of the alleged drug transactions; and officers providing him with details.[26]  Based on the newly discovered evidence, the charges against Buckley were eventually dismissed and he was released after spending eleven and a half years in prison.[27]

Contrary to a majority of states, Arkansas lacks a statute which provides monetary compensation for victims of wrongful convictions.[28] As a result, Buckley had limited options to retrieve compensation from the state other than convincing the legislature to enact a private compensation bill, initiating a private lawsuit, or seeking compensation from the Arkansas Claims Commission. Buckley’s attorneys ultimately sought recompense for his wrongful conviction from the Arkansas Claims Commission.[29]

In 2014, the Arkansas Claims Commission unanimously voted to award Buckley $460,000 as compensation for his wrongful conviction.[30] Attorney General Dustin McDaniel appealed the decision to the Arkansas Legislative Council Claims Review Subcommittee of the Arkansas General Assembly.[31] The subcommittee later reversed the Claims Commission award after being persuaded by McDaniel’s argument that Buckley should be denied compensation because he was never found “not guilty” and that “[n]ot guilty, wrongfully convicted, and actually innocent are all completely different things.”[32] To date, Buckley has yet to receive compensation from the state for the eleven years he spent in prison.[33]

III.  The Prevalence and Leadings Causes of Wrongful Convictions

Gyronne Buckley’s denial of compensation is hardly unique. As stated beforehand, individuals who are wrongfully convicted in Arkansas and over a dozen other states are not entitled to any compensation.[34] In order to fully comprehend the necessity of providing compensation to exonerees, it is important to understand the magnitude of the wrongful conviction problem, as well as its sources. Subsection A will provide a breakdown of the number of reported exonerations in the United States in the past two and a half decades. Subsection B will describe some of the common causes of wrongful convictions.

A.  Estimating the Number of Wrongful Convictions

Despite numerous efforts, there is currently no general consensus as to the rate at which innocent people are convicted of crimes.[35] For instance, Supreme Court Justice Antonin Scalia famously opined that the rate at which innocent defendants are convicted of felonies is “less than three-hundredths of 1 percent.”[36] One study estimates that a minimum of 2,000 criminal defendants are wrongfully convicted of serious felonies each year, while at least another 3,000 more are wrongfully convicted of  lesser felonies.[37] Other scholars have argued that a “conservative estimate” of the amount of erroneous convictions of defendants sentenced to death from 1973 through 2004 is approximately 4.1%.[38] Researchers with the National Registry of Exonerations (“National Registry”) have reported that there were approximately 1,535 known exonerations within the United States from the period of January 1989 to January 2015.[39] In 2014, the National Registry reported that there were a record breaking 125 exonerations, which constituted a 37% increase from 2012 and 2013.[40]

Some could argue that it is easy to dismiss the number of recorded exonerations as insignificant, given that the overall amount is only a fraction of the 2.3 million people currently imprisoned within the United States.[41] However, the numbers reported by the National Registry are only comprised of the wrongful convictions that have been discovered and “point to a much larger number of tragedies that we do not know about.”[42] Indeed, the National Registry concludes that this data suggests that there are “far more false convictions than exonerations.”[43]

B. The Leading Causes of Wrongful Convictions

There are numerous reasons why wrongful convictions occur. According to the Innocence Project,[44] three of the most common causes of wrongful convictions include eyewitness misidentification, false confessions and prosecutorial misconduct.[45] This subsection will address how each of these causes may lead to the prosecution of innocent individuals.

i. Eyewitness Misidentification

The Innocence Project asserts that the most common cause of wrongful convictions is mistaken eyewitness identification.[46] The Innocence Project reports that eyewitness misidentification has played a substantial role in approximately seventy-five percent of convictions which were subsequently overturned due to DNA evidence.[47] Such numbers are unsurprising given the powerful and persuasive impact eyewitness testimony can have on a criminal prosecution. Indeed, as Professor Elizabeth Loftus famously noted, “there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”[48]

Scholars point to several reasons why eyewitness testimony is often unreliable and leads to wrongful convictions. The malleability of eyewitness memory by the use of suggestive police methods “long known to increase the chances of error” is often a source of eyewitness misidentification.[49] For instance, there are numerous instances in which the police have told eyewitnesses who the witness should select during police lineups.[50] Another highly suggestive procedure the police may use is a “show-up,” which involves presenting a suspect directly to an eyewitness in a one-on-one encounter “in the hours immediately following an incident, in order to quickly identify the perpetrator or rule out the suspect and continue their investigation.”[51] Further, an officer may “unintentionally reinforce a mistaken misidentification” by giving nonverbal cues to eyewitnesses during police lineups, such as nodding or shaking her head or “speed[ing] up the procedure to indicate the suspect.”[52]

ii.  False Confessions

False confessions are another common cause of wrongful convictions.[53]  Advocates for the wrongfully convicted contend that an exoneree has given a false confession if she either made a false statement to the police that was treated as a confession; the police claim that such a statement was made and the exoneree later recants; or if the exoneree made a statement that was misinterpreted as an admission of guilt by the police.[54]

Researchers previously believed that false confessions were “scarcely conceivable and of the rarest occurrence.”[55] However, wrongful conviction experts assert that the innocent falsely confess to crimes “far more often than most people believe.”[56] Indeed, researchers with the Innocence Project estimate that more than a quarter of those wrongfully convicted and subsequently exonerated by DNA evidence made a false confession.[57]

Despite the numerous documented examples of police eliciting false confessions, researchers have been unable to pinpoint exactly “how often false confessions occur . . . [or] how frequently false confessions lead to wrongful convictions.”[58] The Innocence Project contends that there are many factors that contribute to false confessions, including coercion, mental impairment, fear of violence, ignorance of the law, and the threat of a harsh sentence.[59]

iii.  Government Misconduct

Prosecutorial misconduct is another leading cause of wrongful convictions.[60] One study surveyed sixty-five DNA exoneration cases and discovered that “courts found prosecutorial misconduct or error . . . in nearly half” of those cases.[61] There are numerous forms of prosecutorial misconduct which could lead to wrongful convictions, such as “[r]elying on fraudulent forensic expert . . . [or m]aking misleading arguments that overstate the probative value of testimony.”[62] Some scholars suggest, however, that the widespread withholding of exculpatory evidence from defendants “represent[s] the single greatest cause of wrongful convictions.” [63]

In Brady v. Maryland, the United States Supreme Court held that criminal defendants have a constitutional right to receive favorable and material evidence from the prosecution upon request.[64] As one scholar notes, the primary purpose of the Brady rule is to ensure that the wrongfully convicted are protected “from conviction, imprisonment and even execution.”[65] Despite the constitutional mandate articulated in Brady, “studies by legal and scientific scholars have shown that wrongful convictions have persisted at an alarming rate since the Court’s decision in Brady.”[66] Indeed, Gyronne Buckley’s wrongful conviction is a textbook example of a Brady violation and serves as a representation of the “rather rare circumstance in which claims of Brady violations have resulted in relief in Arkansas courts.”[67]

IV.  The Inadequacies of Existing Remedies

At common law, a wrongfully imprisoned individual cannot “recover any damages from the state that wrongfully imprisoned him.”[68] As a result, exonerees in states without a compensation statute are often left with two alternatives. First, exonerees may be forced to confront the frustrating “substantive and technical obstacles” of state tort and civil rights remedies in order to obtain compensation.[69] Second, exonerees may be required to “beg the [state] legislature for a ‘private compensation bill.’”[70] Unfortunately, both private lawsuits and private compensation bills often “lead to heartless delays and denials” for exonerees.[71]

The following subsections provide an overview of some of the potential remedies the wrongfully convicted may seek, as well as why those remedies are often inadequate in providing compensation. Specifically, Subsection A will consider private lawsuits as a potential remedy of wrongful convictions. Subsection B will then discuss the enactment of private legislation as a possible source of compensation for exonerees. Lastly, Subsection C argues that wrongful conviction compensation statutes are the preferred remedy for exonerees. Subsection C concludes by providing a comparison of wrongful conviction compensation statutes as enacted by Texas, Louisiana and the federal government. Subsection C also provides an overview of model legislation promulgated by the Innocence Project.

A.  Private Lawsuits

Theoretically, an exoneree can sue the government in order to obtain compensation for his wrongful conviction. For instance, victims of wrongful convictions have filed Section 1983 actions alleging Brady violations and other claims of government misconduct with “increased frequency.”[72] Title 42 U.S.C. § 1983 offers a number of federal civil rights remedies that may provide compensation for victims of wrongful convictions.[73] Section 1983 provides that any official, acting under color of state law, who deprives a citizen of a constitutional right may be liable for damages.[74] Pursuant to Section 1983, a wrongfully convicted individual might pursue claims for false imprisonment, malicious prosecution, fabrication of evidence, suppression of exculpatory evidence, and coerced confessions.[75] Despite that robust illustrative list, there are “substantial legal barriers [that] make § 1983 an ineffective and inadequate means of obtaining compensation.”[76]

Even if an exoneree can establish that government misconduct contributed to his wrongful conviction, the exoneree must still overcome absolute and qualified immunity. In short, these doctrines establish for prosecutors absolute immunity from civil suit damages under Section 1983.[77] That immunity exists if it leaves a “genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.”[78] Absolute immunity for prosecutors extends to situations where “the prosecutor fabricates evidence, withholds information, or fails to tell the truth while under oath.”[79]

Connick v. Thompson offers a prime example of the difficulties exonerees face when attempting to hold prosecutors accountable for misconduct under Section 1983. In Connick, John Thompson was wrongfully convicted for attempted armed robbery after Orleans Parish “prosecutors failed to disclose evidence that should have been turned over to the defense under Brady v. Maryland.”[80] Specifically, prosecutors failed to disclose a crime lab report, which indicated that the perpetrator of the armed robbery had blood type B, prior to Thompson’s trial.[81] Thompson was convicted for attempted armed robbery.

A few weeks later, Thompson was tried in an unrelated murder trial.[82] Thompson refused to testify because of the attempted robbery conviction and was subsequently convicted and sentenced to death.[83]  However, one month prior to his scheduled execution, Thompson’s counsel discovered the crime lab report from the attempted armed robbery case files.[84] Thompson was subsequently tested, and it was discovered that he had blood type O.[85] As a result of the discovery, Thompson’s murder conviction was reversed because “the armed robbery conviction unconstitutionally deprived Thompson of his right to testify in his own defense at the murder trial.”[86] Thompson was ultimately acquitted after a retrial of the murder charges.[87]

Pursuant to Section 1983, Thompson brought an action against the Orleans Parish District Attorney, alleging that the District Attorney should be held liable for his failure to adequately train prosecutors in his office about their duty to produce exculpatory evidence.[88] However, the Supreme Court held that the prosecutor’s office could not be held liable under Section 1983 for a single Brady violation.[89] Instead, the Supreme Court ruled that a successful claimant in such actions must establish that a prosecutor’s office displayed a “prior pattern of similar violations . . . to show deliberate indifference to [a defendant’s] Brady rights.”[90]  As a result, some commentators have noted that the Supreme Court’s decision in Connick “reaffirmed its commitment to prosecutorial immunity . . . [by] sharply limiting one of the few remaining avenues of redress for prosecutorial misconduct.”[91]

Police officers are also protected by an immunity doctrine. Although not as strong as absolute immunity, qualified immunity shields officers from civil liability if, ”at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”[92] As a result of this protection, few exoneree civil lawsuits against police officers are successful.[93]

Some scholars contend that qualified immunity cannot protect a defendant whose “unconstitutional conduct . . . involves an element of culpability that is inconsistent with finding that the defendant acted in a reasonably objective manner.”[94] For instance, qualified immunity does not exist for the government official who intentionally violates a criminal defendant’s constitutional rights.[95]  However, most victims of wrongful convictions are unable to succeed on such claims because, “[i]n most cases, there is no intentional misconduct that caused the wrongful conviction, or at least, none that can be proven.”[96]

Other substantial barriers that exonerees may face when bringing private lawsuits include the expense, time-commitment, and uncertainty associated with litigation. Although private lawsuits may yield a higher monetary award than compensation statutes, “such litigation is very costly, takes years to prosecute and the outcome is never certain.”[97]

Consider, for instance, the case of Michael Evans from Chicago, Illinois, who was convicted in 1976 for child abduction, rape and murder.[98] After twenty-seven years of imprisonment, Governor Rod Blagojevich pardoned Evans.[99] Following his exoneration and release from prison, Evans received a meager $160,000 pursuant to the Illinois wrongful compensation statute.[100] Evans commenced a private action against several Chicago police officers who participated in the investigation that led to his wrongful conviction and “sought $2 million for each year he spent in prison plus other damages.”[101] Remarkably, a jury rejected Evans’s claim and awarded him no additional compensation despite clear evidence of his innocence.[102]

B.  Private Legislation

Another potential source of compensation for the wrongfully convicted might arise from “a private bill from the state legislature, which can allocate money to the individual.”[103] Ideally, such a bill would provide an exoneree with an amount that reflects her “lost time, lost wages, and physical and mental suffering, as well as the effects on . . . her family.”[104] Across the country, numerous exonerees have successfully lobbied their state legislatures to pass private compensation bills, including Rodney Bragg of Clark County, Arkansas, who received $200,000 for his wrongful conviction.[105] Interestingly, Bragg was also a victim of fabricated testimony stemming from a controlled drug transaction supervised by Agent Keith Ray.[106]

But private bills remain inadequate in most cases. Lobbying the legislature to pass a compensation statute is particularly problematic for the vast majority of exonerees. The most obvious roadblock for exonerees to receive reparations in this manner is that “convinc[ing] the legislature of the need for compensation makes it a political issue.”[107] In short, whether an exoneree receives adequate compensation from a private bill is often determined by the amount of publicity the exoneration garnered, the exoneree’s political ties, and state budgetary concerns rather than the merits of his claim.[108]

C.  Wrongful Conviction Compensation Statutes

Recognizing the inherent difficulties of obtaining legal redress through litigation and private bills, many state legislatures have adopted wrongful conviction compensation statutes to provide reparations for exonerees.[109] Wrongful conviction compensation statutes establish a “uniform amount of financial assistance, per year of wrongful imprisonment, to anyone who can show that he was innocent of the crime and wrongfully convicted.”[110] Enactment of compensation statutes is increasingly frequent, as evidenced by the thirty states, the federal government and the District of Columbia that now have such statutes.[111]

Despite the increasing prevalence of such statutes, advocates note that the amount of compensation provided in “existing . . . statutes var[ies] greatly.”[112] For example, in Alabama victims of wrongful incarceration are entitled to receive “an amount equal to fifty thousand dollars ($50,000) for each year or the pro rata amount for the portion of each year of incarceration.”[113] In comparison, Wisconsin awards victims of wrongful conviction “the amount which will equitably compensate the petitioner, not to exceed $25,000 and at a rate of compensation not greater than $5,000 per year for the imprisonment.”[114]

The next four sub-subsections will examine wrongful conviction compensation statutes as enacted by several jurisdictions, as well as model legislation recently promulgated by advocates. The first sub-subsection will examine the compensation statute enacted by Texas. The second sub-subsection will examine a similar statute enacted in Louisiana. The third sub-subsection will then examine the wrongful conviction statute enacted by the federal government. The final sub-subsection will examine model legislation proposed by the Innocence Project.

i.  Texas

Advocates have described the Texas compensation statute as “the most generous in the [United States].”[115] Exonerees are entitled to receive up to $80,000 for each year served in prison.[116] In addition, the statute compensates exonerees for any accumulated child support payments that accrued during their wrongful incarceration.[117] If the exoneree was paroled or forced to register as a sex offender, the state adds an additional $25,000 per year.[118]

In order to receive compensation, an exoneree must satisfy several statutory requirements. The exoneree must, for example, have either received (1) a “full pardon on the basis of innocence for the crime” for which he was sentenced; (2) received relief pursuant to a writ of habeas corpus based on a determination of actual innocence; or (3) obtained relief pursuant to a writ of habeas corpus along with an order dismissing the charge from a state court. [119]   As to that option, the court’s order must be presumed on the belief that the exoneree is actually innocent of the crime for which he was sentenced.[120]

In addition to monetary compensation, Texas has adopted a holistic approach to compensating victims of wrongful convictions by providing services considered by advocates to be “the best in the nation.”[121] For instance, Texas provides exonerees with “job training [and] tuition credits.”[122] In addition, exonerees are eligible to receive “the same health insurance as employees of the Texas Department of Criminal Justice.”[123] As of 2013, Texas has paid approximately $65 million in compensation to exonerees since 1992.[124]

ii.  Louisiana

In stark contrast to Texas, advocates describe Louisiana’s wrongful conviction compensation statute as a failure “to atone for the miscarriage of justice that stripped [exonerees] of the opportunity to pursue a career and raise a family.”[125] In Louisiana, an exoneree is entitled to compensation if his conviction has been vacated or reversed, and the exoneree has established, through clear and convincing evidence, that he is “factually innocent” of the crime that lead to his conviction.[126] If the court finds that the exoneree is “factually innocent,” it may determine the amount of compensation to be received.[127]

The maximum amount of compensation an exoneree in Louisiana may receive is $25,000 for each year of imprisonment.[128] The total amount of compensation an exoneree may receive is capped at $250,000, no matter the length of the exoneree’s imprisonment.[129] Although exonerees are eligible to receive an additional award as compensation for “loss of life opportunities” that resulted from the time the exoneree was imprisonment, the award is limited to eighty-thousand dollars.[130] The award for loss of life opportunities may be used to defray the costs of obtaining job-training skills, medical care, and tuition for any community college or university located in Louisiana.[131]

As stated beforehand, wrongful conviction advocates have been critical of the current compensation law in Louisiana, stating that it “unfairly shortchanges” exonerees.[132] For instance, advocates point to Rickie Johnson, who was wrongfully convicted of rape and spent “more than two decades in prison.”[133] Despite the duration of his imprisonment, Johnson received $250,000 in compensation.[134] As a result of such injustices, advocates are lobbying the Louisiana legislature to either increase the amount of compensation available to exonerees or remove the cap entirely.[135]

iii.  Federal Compensation Statute

On October 30, 2004, President George W. Bush signed the Justice for All Act into law.[136] The law amended the federal government’s compensation statute by drastically increasing the amount of compensation that a federal inmate may receive for his wrongful conviction.[137] Previously, a federal inmate could only be compensated a maximum award of $5,000 “no matter how many years they spent unjustly incarcerated.”[138]

Under the existing federal law, victims of wrongful conviction may be awarded a maximum of $50,000 for each year of incarceration.[139] If the federal inmate was unjustly sentenced to death, he is eligible to a maximum of $100,000 for each year of incarceration.[140] Notably, the federal law also encourages states to provide “reasonable compensation to any person found to have been unjustly convicted of an offense against the State and sentenced to death.”[141] Since the enactment of the current federal compensation statute, several states have “followed the lead of the federal government” and increased the maximum amount of compensation available for victims of wrongful compensation to $50,000 for each year of incarceration.[142]

iv.  Innocence Project Model Legislation

The Innocence Project has promulgated a model wrongful conviction compensation statute “after years of working with exonerees and their families, legislators, social workers and psychologists.”[143] The model legislation includes provisions that would award at least $62,500 for each year of unjust incarceration.[144]  The model legislation calls for an additional $62,500 for each year the exoneree served on death row.[145] In determining the appropriate amount of compensation, the model statute requires the judge to consider such factors as lost wages, the cost of the exoneree’s criminal defense, any current or future medical expenses, as well as personal physical and non-physical injuries sustained during the period of incarceration.[146] The statute also entitles exonerees to receive a minimum of $31,000 for each year the exoneree served on parole, probation or registered as a sex offender.[147]

In addition to monetary compensation, the model legislation also entitles exonerees to a litany of social services.  The model legislation provides that exonerees are eligible to receive the following benefits: physical and mental healthcare for life; educational tuition and fee reimbursement for the exoneree, as well as any children conceived prior to his wrongful compensation; compensation for child support payments that became due during the period of incarceration; reimbursement for reasonable costs associated with the immediate release of the exoneree, including transportation, housing and reintegration services; as well as payment of reasonable attorney’s fees.[148] The model legislation further prohibits a cap on an award for damages and would exempt the compensation from taxation.[149]

V.  Proposal for Enacting a Wrongful Compensation Statute in Arkansas

As noted above, Arkansas has failed to enact a wrongful conviction compensation statute.[150]  By failing to enact a system of compensation for the wrongfully convicted, the Arkansas General Assembly is effectively “aggravat[ing the] already difficult and meager transition back to civilian life” that exonerees face.[151]  In order to atone for the numerous injustices inflicted upon exonerees as a result of their imprisonment, Arkansas should join the majority of states that allow the wrongfully convicted to receive compensation. This section provides some suggestions that the Arkansas General Assembly should incorporate into a wrongful conviction compensation statute.

Perhaps the most difficult issue facing state legislatures is determining the exact amount exonerees should be compensated as a result of their wrongful conviction.  As previously noted, there is no uniform standard of compensation, and the amount provided to exonerees through existing state statutes varies “widely from a flat maximum total of $20,000 regardless of the number of years spent wrongfully imprisoned in New Hampshire, to $80,000 per year of wrongful imprisonment with no maximum total in Texas.”[152]

Recently, advocates for the wrongfully convicted have lobbied state legislatures to afford exonerees the “federal standard of . . . $50,000 for each year of unjust imprisonment.”[153]  Since the enactment of the federal statute in 2004, however, only five states have passed legislation which matches the federal standard of compensation.[154] Many advocates attribute the slow adoption of a national “minimum level of compensation” to state budgetary constraints and contend that wide scale enactment of the federal standard will not happen soon.[155] Similar to many other state legislatures, Arkansas has recently enacted budget cuts across most of its state agencies, and it is unlikely that the current state legislature possesses the political will to enact such a statute in the face of budgetary constraints.[156]

Despite budgetary concerns, some scholars have suggested that providing statutory compensation to exonerees is advantageous because such statutes allow states to “predict costs,” avoid being “surprised by large awards in lawsuits” and decrease the overall number of wrongful convictions.[157] Accordingly, providing some measure of recompense to the wrongfully convicted may ultimately save Arkansas money in the long term by “encourag[ing] procedural changes that will lead to fewer instances of wrongful arrest and conviction,” and allowing the state to “prepare for the predictable costs of the scheme.”[158]

Regardless of the amount of compensation Arkansas elects to provide victims of wrongful convictions, any statute should provide a “holistic scheme” which “offer[s] the innocent a broad[] range of important reentry services.”[159] There is no question that exonerees face a plethora of obstacles once released from prison. For example, a study conducted by the New York Times found that a majority of DNA-exonerated individuals “struggled to keep jobs, pay for health care, rebuild family ties and shed the psychological effects of” wrongful incarceration.[160]

Indeed, many of the exonerees complained that the state failed to provide them with the assistance they needed to start life anew, such as job training, drug treatment, food stamps or housing assistance.[161] As a result, advocates suggest that compensation statutes should go beyond monetary compensation and “provide meaningful services to wrongfully convicted individuals, both to compensate them for the non-monetary injuries they have suffered as a result of their incarceration, and to assist their successful reintegration into society.”[162] Although the assistance and services provided to exonerees does not necessarily have to be as robust as those found in Texas, the Innocence Project recommends that compensation statutes should include assistance for food and transportation; affordable housing; physical and mental healthcare services; legal services; and workforce training.[163]

VI.  Conclusion

Gyronne Buckley has described the eleven and a half years he spent in prison as a “man-made hell” that he prayed to be released from every day.[164] Although Buckley has never received compensation for the severe injustice he endured, he maintained that the initial award was insignificant “compared with what he might have accomplished with [eleven] years in the prime of his life.”[165] Indeed, there is “[n]o amount of money, no matter how great, [that] can bring justice” to the victims of wrongful incarceration.[166] Regardless of this truth, exonerees should be afforded compensation as a result of the injustices they experienced at the hands of the criminal justice system. Failing to provide the victims of wrongful conviction with some form of reasonable compensation makes a “mockery” of our justice system.[167]

Given that private lawsuits and private compensation bills are inadequate remedies for the wrongfully convicted, Arkansas should adopt a compensation statute which provides them with monetary compensation. Ideally, the level of compensation to be provided would match the federal standard of up to $50,000 for each year of wrongful imprisonment. In addition, Arkansas should consider providing exonerees with non-monetary compensation, such as housing assistance, physical and mental healthcare services and occupational training. Providing these additional services would ensure that exonerees have a much more successful transition into society.


* The author is a recent graduate of the University of Arkansas School of Law and currently serves as an Equal Justice Works Fellow and Associate Counsel at the Lawyers’ Committee for Civil Rights Under Law in Washington, D.C. The author thanks Professor Tiffany Murphy and Dean Brian Gallini for their assistance and contributions to this article. The views expressed here are solely those of the author in his private capacity and do not necessarily reflect the views of the Lawyers’ Committee.

[1] Edwin M. Borchard, Convicting the Innocent 378 (1932).

[2] Id. at vii.

[3] Id.

[4] Id.

[5] Id. at 390.

[6] Id. at 367.

[7] Stephanie Slifer, How the Wrongfully Convicted are Compensated for Years Lost, CBS News (Mar. 27, 2014, 6:33 AM),

[8] Adele Bernhard, A Short Overview of the Statutory Remedies for the Wrongfully Convicted: What Works, What Doesn’t and Why, 18 B.U. Pub. Int. L.J. 403, 403 (2009).

[9] Id.

[10] David Koon, Gyronne Buckley was Sent to Prison for Life on the Word of a Cop Who Has Been Called a Disgrace to the State, Ark. Times, Aug. 21, 2014,

[11] J. Thomas Sullivan, Brady-Based Prosecutorial Misconduct Claims, Buckley and the Arkansas Coram Nobis Remedy, 64 Ark. L. Rev. 561, 583 (2011).

[12] Buckley v. State, 20 S.W.3d 331, 333 (Ark. 2000).

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 334.

[17] Id.

[18] Id.

[19] Koon, supra note 10.

[20] Buckley, 20 S.W.3d at 336.

[21] Sullivan, supra note 11 at 585-86.

[22] Sullivan, supra note 11 at 585-86.

[23] Koon, supra note 10.

[24] Maurice Possley, Gyronne Buckley, Nat’l Reg. of Exonerations (June 2012),

[25] Rob Moritz, Man Awarded $460,000 in Wrongful Conviction Claim, Ark. News (Dec. 17, 2013, 4:41 PM),

[26] Koon, supra at note 10.  

[27] Koon, supra at note 10.

[28] Wrongful Conviction Compensation Statutes, CNN, (last visited May 7, 2015). See also How is Your State Doing?, Innocence Project,

[29] Koon, supra at note 10.

[30] Koon, supra at note 10.

[31] Koon, supra at note 10.

[32] Koon, supra at note 10. Interestingly, McDaniel’s decision to convince the Arkansas General Assembly to overturn the Claims Commission’s award to Buckley has been met with harsh criticism. For instance, one commentator accused McDaniel of “us[ing] unethical tactics to fight a man who is merely seeking compensation for being wrongly convicted.” Marc Kilmer, Gyronne Buckley Continues to Seek Justice, The Ark. Project (Dec. 16, 2014),

[33] Koon, supra at note 10.

[34] Compensating the Wrongly Convicted, Innocence Project (Oct. 10, 2014, 9:20 AM), According to the Innocence Project, the following states do not currently have a wrongful conviction compensation statute: Alaska, Arizona, Arkansas, Delaware, Georgia, Hawaii, Idaho, Indiana, Kansas, Kentucky, Michigan, Nevada, New Mexico, North Dakota, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, and Wyoming. Id.

[35] Adam Liptak, Consensus on Counting the Innocent: We Can’t, N.Y. Times, Mar. 25, 2008,

[36] Id. See also Kansas v. Marsh, 548 U.S. 163, 198 (2006).

[37] Marvin Zalman, Qualitatively Estimating the Incidence of Wrongful Convictions, 48 Crim. L. Bull. 221, 277 (2012).

[38] Sam R. Gross, et al., Rate of False Conviction of Criminal Defendants who are Sentenced to Death, 111 Proc. Nat’l Acad. Sci. U.S.1 (2014),  available at

[39] Exonerations in 2014, Nat’l Reg. of Exonerations 1 (Jan. 27, 2015),

[40] Id.

[41] Sam R. Gross, Exonerations in the United States, 1989 – 2012, Nat’l Reg. Exonerations 3 (Jun. 2012),

[42] Id.

[43] Id.

[44] The Innocence Project describes itself as a “national litigation and public policy organization dedicated to exonerating wrongfully convicted people.” See Frequently Asked Questions, Innocence Project, (last visited May 6, 2015).

[45] The Causes of Wrongful Convictions, Innocence Project, (last visited May 6, 2015).

[46] Id.

[47] Eyewitness Misidentification, Innocence Project, (last visited May 6, 2015).

[48] Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting) (quoting Elizabeth Loftus, Eyewitness Testimony 237-247 (1979)).

[49] Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 48-49 (2011).

[50] Id. at 49.

[51] Id. at 52.

[52] Id. at 62.

[53] Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminology 429, 429 (1998).

[54] False and Coerced Confessions, Bluhm Legal Clinic Center on Wrongful Convictions, (last visited May 6, 2015).

[55] Garrett, supra note 49 at 18.

[56] Lisa Black & Steve Mills, What Causes People to Give False Confessions? Chi. Trib., July 11, 2010,

[57] False Confessions or Admissions, Innocence Project, (last visited May 6, 2015).

[58] Leo & Ofshe, supra note 53 at 431.

[59] Innocence Project, supra note 57.

[60] Peter A. Joy, The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006 Wis. L. Rev. 399, 402 (2006).

[61] New Report: Prosecutorial Misconduct and Wrongful Convictions, Innocence Project (Aug. 25, 2010, 2:16 PM),

[62] Government Misconduct, Innocence Project, (last visited May 6, 2015).

[63] Brian Gregory, Comments, Brady is the Problem: Wrongful Convictions and the Case for “Open File” Criminal Discovery, 46 U.S.F. L. Rev. 819, 822 (2012).

[64] 373 U.S. 83, 87 (1963).

[65] Gregory, supra note 63 at 819.

[66] Gregory, supra note 63 at 819.

[67] Sullivan, supra note 11 at 581.

[68] Deborah F. Buckman, Annotation, Construction and Application of State Statutes Providing Compensation for Wrongful Conviction and Incarceration, 53 A.L.R. 6th 305 (2010).

[69] Id.

[70] Emily Bazelon, If We Can’t Prevent Wrongful Convictions, Can We at Least Pay for Them? N.Y. Times, Apr. 9, 2015,

[71] Id.

[72] Martin A. Schwartz & Robert W. Pratt, Wrongful Conviction Claims Under Section 1983, 27 Touro L. Rev. 221, 222 (2011).

[73] Michael Avery, Obstacles to Litigating Civil Claims for Wrongful Conviction: An Overview, 18 B.U. Pub. Int. L.J. 439, 439 (2009).

[74] 42 U.S.C. § 1983 (2006).

[75] Avery, supra note 73 at 439-40.

[76] Shawn Armburst, Note, When Money Isn’t Enough: The Case for Holistic Compensation of the Wrongfully Convicted, 41 Am. Crim. L. Rev. 157, 161 (2004).

[77] Imbler v. Pachtman, 424 U.S. 409, 431 (1976).

[78] Id. at 427.

[79] Qualified Immunity: Striking the Balance for Prosecutor Accountability, Center for Prosecutor Integrity 3 (2014),

[80] Connick v. Thompson, 563 U.S. 51, 54 (2011).

[81] Id. at 55. .

[82] Id. at 56.

[83] Id.

[84] Id.

[85] Id.

[86] Id.

[87] Id.

[88] Id.

[89] Id. at 54.

[90] Id. at 107.

[91] David Keenan, Deborah Jane Cooper, David Lebowitz & Tamar Lerer, The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale L.J. Online 203, 209 (2011).

[92] Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

[93] What Happens to Prosecutors or Police or Lab Analysts Whose Misconduct Leads to Wrongful Convictions, Innocence Project, (last visited May 7, 2015).

[94] Michael Avery, David Rudovsky & Karen Blum, Police Misconduct: Law and Litigation §3:11 (3d ed. 2008).

[95] Id.

[96] What Happens to Prosecutors or Police or Lab Analysts Whose Misconduct Leads to Wrongful Convictions, Innocence Project, (last visited May 7, 2015).

[97] Ashley H. Wisneski, “That’s Just Not Right:” Monetary Compensation for the Wrongfully Convicted in Massachusetts, 88 Mass. L. Rev. 138, 139 (2004).

[98] Michael Higgins, More Pay Sought in Wrongful Jailings, Chi. Trib., (Aug. 10, 2006),

[99] Id.

[100] Id.

[101] Id.

[102] Id.

[103] Daniel S. Kahn, Presumed Guilty Until Proven Innocent: The Burden of Proof in Wrongful Conviction Claims Under State Compensation Statutes, 44 U. Mich. J.L. Reform 123, 134 (2010).

[104] Michael Tsai, 18 Years in Prison? Priceless, Slate (May 18, 2007),

[105] Koon, supra note 10.

[106] Koon, supra note 10.

[107] Innocence Project, supra note 34.

[108] Kahn, supra note 103 at 134.

[109] Buckman, supra note 68.

[110] Making Up for Lost Time: What the Wrongfully Convicted Endure and How to Provide Fair Compensation, Innocence Project 13 (Dec. 2, 2009),

[111] Innocence Project, supra note 34.

[112] Innocence Project, supra note 96 at 4.

[113] Ala. Code § 29-2-159 (West, WestlawNext through Act 2015-559 of the 2015 Regular, First Special and Second Special Sessions).

[114] Wis. Stat. §775.05(4) (West, WestlawNext through 2015 Act 60).

[115] The Associated Press, Texas Ex-Inmate Fights for $2M Under Wrongful Conviction Compensation Law, Governing, (Mar. 19, 2012), (The URL here is correct but will not find the article when searched.)

[116] Tex. Civ. Prac. & Rem. Code Ann. § 103.052(a)(1) (West, WestlawNext through the end of the 2015 Regular Session of the 84th Legislature).

[117] Id. at §103.052(a)(2) (Westlaw).

[118] Id. at §103.052(b) (Westlaw).

[119] Tex. Civ. Prac. & Rem. Code Ann. § 103.001(a) (West, WestlawNext through the end of the 2015 Regular Session of the 84th Legislature).

[120] Id.

[121] Innocence Project, supra note 96 at 22.

[122] Innocence Project, supra note 96 at 22.

[123] Mike Ward, Tab for Wrongful Convictions in Texas: $65 Million and Counting, Austin Am.-Statesman, (Feb. 10, 2013, 06:48 PM), ‎

[124] Id.

[125] THE ADVOCATE: Louisiana paying wrongfully convicted, but is it enough?, Life After Exoneration Program, (Sep. 29, 2013).

[126] La.  Stat. Ann. § 15:572.8(A) (West, WestlawNext through the 2014 Regular Session).

[127] Id. at §15:572.8.(H)(1), (Westlaw).

[128] Id. at §15:572.8(H)(2), (Westlaw).

[129] Id.

[130] Id.

[131] §15:572.8(H)(2)(a)-(c), (Westlaw).

[132] Mustain & Wallace, supra note 125.

[133] Mustain & Wallace, supra note 125.

[134] Mustain & Wallace, supra note 125.

[135] Mustain & Wallace, supra note 125.

[136] Justice for All Act, Pub. L. No. 108–405, § 431, 118 Stat 2260,(2004),(codified at 28 U.S.C. § 2513 (2006).

[137] Id.

[138] Compensating the Exonerated, PBS Frontline (last visited May 7, 2015).

[139] 28 U.S.C. § 2513(e) (2006).

[140] Id.

[141] Justice for All Act, Pub. L. No. 108–405, § 432, 118 Stat 2260, (2004).

[142] Gabrielle Emmanuel, When Innocent People Go to Prison, States Pay, NPR (June 16, 2014, 10:05 AM),

[143] 81% of Exonerated People Who Have Been Compensated Under State Laws Received Less Than the Federal Standard, Innocence Project,(Dec. 2, 2009, 12:00 PM), (last visited May 7, 2015).

[144] The Innocence Project, Model Legislation, An Act Concerning Claims for Wrongful Conviction and Imprisonment, § 4(B)(1)(a) (2014), available at

[145] Id.

[146] Id. at §4(B)(1)(a)(ii)(a)-(b)

[147] Id. at §4(B)(1)(b).

[148] Id. at §4(B)(1)-(8).

[149] Id. at §4(C)(1)-(2).

[150] Innocence Project, supra note 34.

[151] Jack Healy, Wrongfully Convicted and Seeking Restitution, N.Y. Times, (Mar. 13, 2013),

[152] Innocence Project, supra note 143.

[153] Michael Leo Owens & Elizabeth Giffifths, Uneven Reparations for Wrongful Convictions: Examining the State Politics of Statutory Compensation Legislation, 75 Alb. L. Rev. 1283, 1298-99 (2012).

[154] Innocence Project, supra note 143.

[155] David Dwyer, States Grapple with Compensation Laws for Boom in Exonerated Convicts, ABC News (Apr. 26, 2011),

[156] Andrew DeMillo, Arkansas Governor Calls for Boosting Medicaid, Schools, Prison Money in Budget, Cuts Elsewhere, Fox Business, (Jan. 27, 2015),

[157] Deborah Mostaghel, Wrongfully Incarcerated, Randomly Compensated-How to Fund Wrongful-Conviction Compensation Statutes, 44 Ind. L. Rev. 503, 526-27 (2011).

[158] Id. at 537.

[159] John Shaw, Comment, Exoneration and the Road to Compensation: The Time Cole Act and Comprehensive Compensation for Persons Wrongfully Imprisoned, 17 Tex. Wesleyan L. Rev. 593, 610 (2011).

[160] Janet Roberts & Elizabeth Stanton, A Long Road Back After Exoneration, and Justice Is Slow to Make Amends, N.Y. Times, (Nov. 25, 2007),

[161] Id.

[162] Jennifer L. Chunias & Yael D. Aufgang, Beyond Monetary Compensation: The Need for Comprehensive Services for the Wrongfully Convicted, 28 B.C. Third World L.J. 105, 108 (2008).

[163] Innocence Project, supra note 34.

[164] Koon, supra note 10.

[165] Koon, supra note 10.

[166] Steve Mills & Juan Perez, Jr., $40M Wrongful Conviction Settlement: ‘The Money is Almost Beside the Point’ Chi. Trib., (June 25, 2014),

[167] Barry George in Protest Over Compensation Rules, BBC News (Feb. 23, 2015),