The indirect consequences of a criminal conviction and subsequent incarceration may be much more serious than the simple endurance of arrest, trial, and incarceration.  A conviction alone can result in losses that are very difficult to recover, even if the individual is eventually exonerated.  The right to hold public office, live in public housing, drive a car, child visitation and child custody, obtain employment, are a few obvious examples of ways in which a conviction can impact one’s life.

In the case of a wrongful conviction, because the state controls the availability and means of redress for harms it has caused, it must make every effort to be fair and compassionate.  Anything less is yet another slap on the face to those who have already wrongfully suffered at our hands.

Pending legislation to allow compensation to the wrongfully convicted, unless revised, could act as such a slap.  H.2506 was clearly well-guided when introduced.  Subsequent amendments have moved the bill so far from its original intent and operation as to now be nearly meaningless to those originally intended to benefit.  The removal of the statement of legislative intent, the addition of several burdensome and questionable legal requirements, and the creation of certain procedural allowances have rendered the bill a weak and potentially useless tool for those who may seek redress for perhaps irreparable harm inflicted by the Commonwealth.

The Criminal Justice Policy Coalition believes that any effort by the General Court should:

clearly state legislative intent to better guide claimants, attorneys, and trial courts;

be practically useful to those it is intended to benefit; and

avoid questionable legal requirements and/or allowances to avoid the burden of future litigation.   

The Criminal Justice Policy Coalition recognizes that being tough on crime is seen as a political necessity.  How and when this transferred to a need to be seen as tough on the innocent is unclear.  Perhaps ironically, tough on crime rhetoric usually includes compassion for victims.  We believe that victims of wrongful conviction deserve the same compassion.

The Board of the CJPC believes that the following changes should be made to H.4255 to bring the bill in line with the intention of the original bill, H.2506.  Elsewhere on this page is a chart comparing a number of other state’s statutes which provide for such compensation.

Concerns Regarding House No. 4255:

An Act Relative to Compensation for Certain Erroneous Felony Convictions

SECTION 1. Reinsert language as follows:

“The general court hereby finds that (1) innocent persons who have been wrongly convicted of crimes and subsequently imprisoned have difficulty achieving legal redress because of a variety of substantive and technical obstacles in state law; (2) these innocent persons should have an available remedy from the Commonwealth, whose official, criminal justice apparatus has seriously failed when an innocent person is convicted and incarcerated; (3) the provisions of this law are intended to permit a person who has already obtained relief from a wrongful conviction and who demonstrates that he or she did not commit the crime — is innocent — to make a claim against the Commonwealth.”

This statement, taken from the text of the bill as originally proposed, is needed to clearly articulate intent, acknowledge the need for redress for victims of wrongful conviction, and to guide officials in the application of this act.

SECTION 1 (C) (vi), remove the bracketed language from lines 55 – 57:

(vi) did not commit any of the crimes charged in the indictment or complaint, or any lesser included felony offenses of the crimes so charged [or any felony crimes directly related to the facts underlying said crimes or offenses] or any felony crimes directly related to the facts underlying said crimes or offense

Requirement of proof of innocence of all acts that may have been charged is novel in this region. Three other Northeastern states, New York, New Hampshire, and Maine, as well as twelve other states, currently provide compensation for the wrongfully convicted.  None of these states require a showing that the already-exonerated claimant prove innocence of any and all acts that may have been the basis of charges by prosecutors.

Requirement of proof of innocence of all acts that may have been charged is overly-burdensome. Shifting the burden of proof to the claimant regarding the actions underlying the overturned conviction is fair.  However, to do so regarding acts that may have led to charges creates an unconstitutional requirement not seen in any criminal context.  While the contemplated proceeding is “civil,” it flows directly out of a criminal proceeding and such proof might depend upon the claimant being able to prove someone else likely guilty of the crime, a burden that should be born by the state.

SECTION 1 (C) (vi), remove the following language from lines 70 – 74:

[No evidence proffered by any party shall be excluded on grounds that it was seized in violation of the fourth or fifth amendment to the United States constitution of the United States, or in violation of Articles 12 and 14 of Part the First of the Constitution of Massachusetts.]

Admission of illegally seized evidence undermines the protection against abuse of state power. No court should be required to accept evidence prohibited by the Bill of Rights or by the Massachusetts State Constitution.  To do so severely undermines protections against the abuse of state powers and allows the commonwealth to ignore the serious breach of trust which results when such illegally gained evidence is sought and obtained.

Admission of illegally seized evidence by a claimant is meaningless. The constitutional amendments cited operate only against the government as a protection against citizens.  Although the act allows such evidence to be used by any party, the allowance is meaningless to claimants as citizens.  By definition, only one party, the state, can obtain illegal evidence, and only the state is prohibited from obtaining and using such evidence. 

Admission of illegally seized evidence creates an unreasonable burden for the claimant.  The admittance of illegally seized evidence places an insurmountable burden on the claimant, who may have no previous knowledge of the evidence.

Admission of illegally seized evidence in this instance is novel and will likely expose the Commonwealth to unnecessary and costly litigation. Three other Northeastern states, New York, New Hampshire, and Maine, currently provide compensation for the wrongfully convicted.  None of these states allow admittance of illegally obtained evidence.  This clause as drafted will likely draw constitutional challenges.

SECTION 4, remove the bracketed language from lines 8 – 12:

[Any office of the district attorney so notified by the office of the attorney general shall immediately notify any individual meeting the definition of victim, as set forth in section 1 o[f] chapter 258B, for the felony conviction that forms the basis for an action filed under this chapter, of the filing of such an action.]

Requirement of notification of “victims” improperly shifts perception of injury away from aggrieved party. The civil actions contemplated in this act, are meant to redress harm, inflicted by the state, to wrongfully convicted and exonerated potential claimants.  The victims in these actions are the wrongfully convicted, not other citizens who may have suffered harm from other citizens.

Requirement of notification of "victims'' serves no legitimate purpose. This requirement can only be intended to prejudice a claimant’s cause of action and deter already exonerated claimants from pursuing compensation for their injuries.

SECTION 4, remove bracketed language, add the language in italics to lines 12 - 19:

The office of the attorney general shall consult with said district attorney’s office relative to the merits of said action and, following said consultation, shall have discretion to determine whether to proffer as evidence any documents, records, testimony or other information brought forward to the attorney general’s office by said district attorney’s office in defense of the commonwealth [at a time deemed appropriate by the attorney general’s office] subject to rules of procedure governing discovery in civil actions and civil trials.

This clause is dangerously vague and confusing as drafted. As drafted, this clause appears to indicate that the legislature intends to allow the attorney general to bypass the Rules of Civil Procedure concerning discovery, and specifically the production of documents.  Modification is necessary to avoid confusion and reduce costly legal challenges.

SECTION 5, remove bracketed language in lines 28 – 34:

The court may also include in said judgment an order that entitles any claimant who wishes to apply for and receive educational services from any state or community college of the commonwealth including, but not limited to, the University of Massachusetts at Amherst and its satellite campuses, to [a 50 per cent reduction of] the tuition and fees applicable to such services at said institutions.

Tuition and fees should be waived entirely. Given the extraordinary nature of the injury, the state should fully recognize and seek to fully remedy all lost opportunities of claimants, including education and all that is in its power to help prepare the claimant for a return to community life.  As a matter of public policy, the legislature has an opportunity here to truly promote the well-being of the claimant.

Waiver of tuition and fees will not burden the state. Elimination of tuition and fees for relatively small number of claimants who will become eligible for education will represent no impact to the state’s total educational budget.

SECTION 5, clarify or delete lines 44 – 47

Notwithstanding the provisions of any general or special law to the contrary, the clerk of court shall not add to the judgment and the commonwealth shall not be liable for paying, any prejudgment or post judgment interests on damages.

Pre-judgment interest is clearly allowed pursuant to M.G.L 231, section 6B, governing personal injury actions.  Therefore, interest should be added to the amount of damages at the specified rate from the date of the commencement of the action, even if such interest brings the amount of the verdict or finding beyond the maximum liability imposed.

SECTION 5, clarify lines 64 – 68

Only those portions of a judgment that are paid or retained as compensation for services in bringing a claim under this chapter by an attorney representing the claimant pursuant to a signed agreement with the claimant or otherwise shall be subject to taxation by the commonwealth.

Statement of taxation of attorneys’ fees is confusing. The act is silent regarding attorneys’ fees except to state that recovered attorneys fees are taxable and that recovery of attorneys’ fees shall not be in addition to any other judgment.  However, attorneys’ fees are recoverable to the prevailing party pursuant to rules governing civil procedure and such fees, if recovered, are in addition to any judgment within the cap set out in this act.

SECTION 6.  Delete entirely.

[Any party to an action filed under this chapter is entitled to make a motion seeking costs, expenses and interest for wholly insubstantial, frivolous or bad faith claims or defenses advanced by the opposing party during proceedings under this chapter as set forth in section 6F of chapter 231 and is also entitled to the rights of appeal afforded parties in a civil action following a decision on such motions as set forth in section 6G of said chapter 231.]

This section is redundant. Pursuant to M.G.L. chapter 231, section 6G, costs and expenses are recoverable after a finding of wholly insubstantial, frivolous or bad faith claims or defenses.  The inclusion of this section is redundant and potentially confusing.

SECTION 7: Criminal records concerns

Identification and review of records.  In a proceeding to determine whether records will be expunged or sealed, any authority or entity arguing to keep records open should identify with specificity which records or documents it seeks to keep open.  Claimants should have the right to review all records and documents in question.

Redaction of records if not sealed or expunged. If the court finds a compelling reason to keep a given record open, the document(s) in question should be redacted to eliminate the claimant’s name and any other identifying information.

CORI and sex offender records should be expunged in all cases:  Under no circumstances should a prevailing claimant be subject to CORI or sex offender registration reporting for the overturned conviction that was the subject of his or her claim under this statute.