H.5030 Critique
Comments on the changes proposed by the Governor
The Governor’s changes would make a draconian law even more draconian, adding further provisions not seen in other states to a bill already out of step with seminal legislation elsewhere. (See the comments on H.4255 at http://www.cjpc.org/rest_bill_problems.htm.) While nearly all of the changes go to raising the hurdles that a claimant must overcome, the more egregious points are:
A). If a claimant is released from prison due to a corrupt initial trial, and the judge orders a new trial, even if the defendant now is found not guilty at the second trial, he is not eligible for relief.
B). The claimant is now required to waive his Miranda rights, otherwise protected by the 6th amendment to the US Constitution; an illegal confession, made without legal representation or waiver of representation, can be admitted. Proving coercion by the police as well as other illegal conduct by the state is a high burden, which is why the amendments were established in the first years of our country.
C). Allowing the testimony of the victim of the underlying crime, given in a prior legal proceeding, to be presented without the claimant able to question the victim is again an erosion of the 6th amendment’s right to confront one’s accusers.
D). Finally, the governor asserts that compensation should be based in the first instance upon the lawful income the claimant would have made but for incarceration. This suggests that unemployment during the period after indictment but before trial is not to be counted, and that unemployed individuals are not as entitled. That the compensation is to be based primarily on lost wages removes the focus from the destruction of false imprisonment suffered by the claimant, which is what this statute should be addressing. Rather, the emphasis becomes one of merely compensating a claimant for lost wages
The Governor’s changes would make a draconian law even more draconian, adding further provisions not seen in other states to a bill already out of step with seminal legislation elsewhere. (See the comments on H.4255 at http://www.cjpc.org/rest_bill_problems.htm.) While nearly all of the changes go to raising the hurdles that a claimant must overcome, the more egregious points are:
A). If a claimant is released from prison due to a corrupt initial trial, and the judge orders a new trial, even if the defendant now is found not guilty at the second trial, he is not eligible for relief.
B). The claimant is now required to waive his Miranda rights, otherwise protected by the 6th amendment to the US Constitution; an illegal confession, made without legal representation or waiver of representation, can be admitted. Proving coercion by the police as well as other illegal conduct by the state is a high burden, which is why the amendments were established in the first years of our country.
C). Allowing the testimony of the victim of the underlying crime, given in a prior legal proceeding, to be presented without the claimant able to question the victim is again an erosion of the 6th amendment’s right to confront one’s accusers.
D). Finally, the governor asserts that compensation should be based in the first instance upon the lawful income the claimant would have made but for incarceration. This suggests that unemployment during the period after indictment but before trial is not to be counted, and that unemployed individuals are not as entitled. That the compensation is to be based primarily on lost wages removes the focus from the destruction of false imprisonment suffered by the claimant, which is what this statute should be addressing. Rather, the emphasis becomes one of merely compensating a claimant for lost wages