Innocence Doesn’t Pay Either

Jonathan Turley is a law professor at George Washington Law School.

Across the country, an estimated 10,000 prisoners are serving time for crimes they did not commit. The few who are able to prove their innocence (primarily through DNA testing) often find themselves outside a prison with a handful of cash and a clean shirt as their only compensation. They are the dark secret of the U.S. justice system -- the legal version of “friendly fire” casualties that prosecutors only reluctantly acknowledge.

Steven Toney was one such recent case. When Toney was arrested in Missouri in 1983 for a bad check, he was confident he could prove his innocence and have the charge dropped. Indeed, it was dropped. However, while Toney was being held, he was asked to stand in a lineup in a rape case. The victim picked him out despite the lack of any evidence connecting him to the crime. Toney was offered a deal but he refused. He insisted he was innocent and decided to fight the charge. He was convicted.

Although prosecutors fought his efforts to have a privately funded DNA test, Toney was finally exonerated after almost 14 years in prison. He is now 55, with much of his life taken away from him and no resources to build a future on what is left. Missouri offers no compensation to wrongly convicted people.

Most states are like Missouri and offer wrongly convicted people their freedom and little else. In Florida, for example, the only assistance is $100 and a bus ticket.

Only 16 states have any system to compensate such individuals, and the level of compensation varies wildly. In Texas, a wrongly convicted person can receive up to $500,000. California recently capped compensation at roughly $100 per day of incarceration -- an improvement from a previous $10,000 cap. Some other states like New York and West Virginia have no limits and allow compensation to be set by the merits of the case.


Other than death, there may be no greater injury that a state can commit than to rob the innocent of their freedom. A recent study showed that the average time spent in jail by the wrongly convicted was 12 years. Most exhausted their financial resources and lost critical years with their children.

Sen. Patrick Leahy (D-Vt.) and other members of Congress have reintroduced a bill that would raise compensation for wrongly convicted federal prisoners from $5,000 to $50,000 a year, $100,000 for capital cases. They have also called on states to match this level of compensation as a minimum.

In one recent Ohio case, a falsely convicted man received $737,000 for 10 years of incarceration. In states like Wisconsin, however, citizens are limited to $5,000 a year.

Such caps, or even outright prohibition of recovery, create a bizarre situation for citizens. If California neglects a road or a bridge and causes an injury, a citizen may sue and receive ample compensation. But when the state convicts an individual on dubious grounds and ruins his life, he is limited to $100 a day in compensation.

Capping or barring such recovery has an obvious effect on prosecutorial decision-making. Prosecutors are motivated to maximize their conviction numbers. In the next election, every district attorney wants to be able to cite a significant increase in convictions, and every prosecutor is expected to contribute to the head count. When it turns out that they convicted various innocent people, prosecutors generally disavow responsibility and blame the jury for the decision.

The fact is that it is the prosecutors, not the juries, who are most responsible for these tragedies. Despite the presumption of innocence, the reality of a trial is that a defendant is presumed guilty by many jurors. Some prosecution offices have a conviction rate higher than 90%.

For this reason, prosecutors are supposed to exercise discretion. They are supposed to send cases back to investigators when evidence is weak or questionable. But they rarely do so in a process that looks more like a factory system than a justice system.

If states were required to pay for the negligence of prosecutors, there would be greater emphasis on evidence than on statistics. Prosecutors with a high number of false convictions would impose a heavy (and unpopular) cost on citizens. The most negligent would effectively price themselves out of office.

In most states, the ranks of the falsely convicted remain forgotten, ignored as unwelcome reminders of the fragility of our justice system. Until the public deals with those unnecessarily harmed by that system, justice will remain a concept best observed from a great distance.