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Improve Remedial Laws
The National Law Journal
March 24, 2008
he wrongful Convictions Tax Relief Act of 2007, S. 2421, recently
introduced by senators Charles E. Schumer, D-N.Y., and Sam Brownback,
R-Kan., would furnish certain tax benefits to exonerated prisoners
without prior felony convictions. Most important, for 15 years
or the number of years of incarceration (whichever is less), it
would exempt them from federal income tax liability on the first
$50,000 of annual income received as reparations for their imprisonment.
The bill is aimed at preventing others from suffering the plight
of exoneree David Pope, who ended up owing nearly a quarter of
the $385,000 that Texas had awarded as recompense for the decade
and a half of hard time he endured before being cleared of rape
It does appear grossly unfair in these circumstances to give with
one hand, then take with the other, even when giver and taker are
separate government bodies. But worse, for the vast majority of
inmates released from confinement on grounds of innocence taxes
are the least of their worries. Few possess a right to any indemnity
for their horrendous ordeal: Only 22 states, the District of Columbia
and the federal government have statutes providing for compensation
to the injured party.
In other jurisdictions, to obtain a recovery, the exonerated must
try to secure the passage of private laws or bring tort or civil
rights actions. Both avenues pose many pitfalls.
To be sure, a few lucky exonerees have benefited from "moral
obligation" bills: In 2007, Connecticut granted James C. Tillman
$5 million on account of the 18-year loss of liberty, "enjoyment
of life," "familial relationships," past income
and future earnings, as well as the "mental pain and suffering" and
physical and psychological injury, flowing from his wrongful convictions
of kidnaping and sexual assault. Most, however, will not succeed
in attracting a politically influential backer able to surmount
the usual reluctance to allocate funds to ex-inmates, however deserving.
Lawsuits, for their part, present both legal and practical problems.
The former include the prevalence of state and official immunities
when government actors are defendants and onerous requirements
such as the need to show the absence of probable cause in suits
for malicious prosecution or false imprisonment. (More broadly,
mistaken witness identifications, the chief producer of erroneous
convictions, do not ordinarily implicate fault in the sense cognizable
in such actions.) The latter include the difficulty of obtaining
counsel to pursue a dicey proceeding, and the fact that often the
only provably "guilty" targets — for example, lying
jailhouse "snitches" — are judgment-proof.
Yet general compensation statutes hardly guarantee appropriate
redress. First, few such laws have kept pace with the cost of living,
and many were miserly from the outset. California, for example,
allots $100 per day of incarceration, with a $10,000 maximum award.
Thus, a convict unjustly imprisoned for two decades could receive
but $500 a year — about $1.37 a day! The prevalence of caps
ironically ensures that those who have been most gravely imposed
on by the criminal justice system stand to benefit least on a per
diem basis. Further, even ceilings exceeding California's often
are appallingly low. In Illinois (the locus of 18 death-penalty
exonerations), an exoneree who served more than 14 years can get
a mere $35,000. (For periods up to five years and between five
and 14 years, the limits are, respectively, $15,000 and $30,000.)
Montana, uniquely, offers only educational aid, and solely to inmates
cleared by DNA testing.
Additional hurdles that claimants frequently have to surmount
include: brief statutes of limitations, the prerequisite of obtaining
a pardon, high burdens of proof and disqualification of defendants
who pleaded guilty or confessed falsely. Certain legislators in
Florida, which is considering adopting a compensatory statute,
would even restrict it to individuals who have never committed
a crime, thereby excluding someone wrongly imprisoned for murder
for 25 years — if he had previously been convicted of petty
As cases of exoneration mount, states must enact remedial laws
that do not add insult to injury. Like modern-day Rip Van Winkles,
the wrongfully imprisoned reenter a world that has largely passed
them by. Typically, they lack both education and work and interpersonal
skills and, in another ironic twist, often have no access to the
ameliorative programs afforded guilty released inmates.
New and amended statutes should follow the model of jurisdictions
like New York and Maryland, which lack caps, and should reject
elevated burdens of proof and delay-causing bureaucratic obstacles.
Society owes a huge debt to exonerees — which, thus far,
it has failed even minimally to repay.