General Language

By Patrice Brymner, April 2004

Of the statutes I’ve looked at, New York has the best statement of legislative intent and the best recognition of the difficulty faced by the wrongly convicted:

The legislature finds and declares that innocent persons who have been wrongly convicted of crimes and subsequently imprisoned have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law and that such persons should have an available avenue of redress over and above the existing tort remedies to seek compensation for damages. The legislature intends by enactment of the provisions of this section that those innocent persons who can demonstrate by clear and convincing evidence that they were unjustly convicted and imprisoned be able to recover damages against the state. In light of the substantial burden of proof that must be carried by such persons, it is the intent of the legislature that the court, in exercising its discretion as permitted by law regarding the weight and admissibility of evidence submitted pursuant to this section, shall, in the interest of justice, give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence or other factors not caused by such persons or those acting on their behalf.

Proof Requirements:

All states providing compensation for wrongful convictions require some proof of "actual innocence."  I have not found any state other than Massachusetts requiring proof of no conduct that could have been charged as a crime.  However, numerous states have other restrictions such as requiring a pardon from the governor or prohibiting an exonerated defendant who entered a guilty plea from receiving compensation later.  It could well be that the “pardon” hurdle is as high or higher than the Mass requirement.

I have not found any mention of the 4^th or 5^th Amendment in any other state’s statute.  Rules of evidence and judicial procedure may be found elsewhere in state law, so I don’t know how unusual the Massachusetts language is.

Compensation Amounts:

Levels of compensation vary widely from state to state.  Although many fall somewhere between $25,000 and $50,000 per year of incarceration, New York puts no cap on the amount of monetary compensation, while New Hampshire limits it to a total of $20,000.  Under the compensation scheme for federal prisoners, the cap is $5,000.  A couple of states, such as Texas, offer counseling for some period, and Maryland can offer “additional compensation” and counseling at the court’s discretion. Massachusetts is on the generous side with a $500,000 cap and with education and other services provided by the state.

Time Limits:

Statute of limitations is two years in most states, but California allows only six months from time of acquittal, pardon or reversal.  The Massachusetts legislation would allow two years; three years for those convicted prior to enactment

 

Expungement of Record

I have not found any language in any state’s statute offering an expungement of record.  It may be that it’s covered by the governor’s pardon in states requiring pardons. 

 

Compensation for Erroneous Convictions – Approaches in Other States

The following three charts, taken together, outline a number of concerns that 18 other states, the federal government and the District of Columbia have considered in constructing legislation intended to provide relief to those individuals who have been wrongfully incarcerated.These charts divide the concerns into Eligibility factors, Trial or Proceeding factors, and Compensation factors.

 

State Legislation for Erroneous (or Wrongful) Convictions:
Determination of Eligibility
Prepared by Greg Larkin1 for the Criminal Justice Policy Coalition, Mar. 2005
			Class Eligibility
St.	Statute	Orig. Enact. (Amend.)	Initial Requirement For Class	Restrictions Based on Contributory	Restrictions Based on Class of Convictions
AL	Code of Alabama §29-2-150 through 165	2001	Judicial Relief - Conviction vacated or reversed and the charges dismissed on grounds of innocence; or charges dismissed on grounds consistent with innocence	a) Claimant must not have been convicted of any of the acts charged with in conjunction with the charge which resulted in the wrongful conviction; b) Claimant's acts or omissions must not have constituted a felony or misdemeanor against the state; and c) Claimant must be imprisoned solely due the wrongful conviction.	Felony conviction with incarceration or pre-trial incarceration of > 2 yrs.
CA	Cal Penal Code §§ 4900 to 4906	(2000)	Pardon - For innocence	Claimant must show he did not contribute to arrest or conviction.	Felony conviction with incarceration
DC	DC Code § 2-421 - 2-425	1981	Pardon - For innocence; Judicial Relief - Conviction reversed or set aside on the ground that claimant is not guilty	a) Claimant must not have plead guilty (unless pursuant to North Carolina v. Alford, 400 U.S. 25 (1970)) and b) Claimant must prove that he did not, by his misconduct, bring about the prosecution.	Convicted with incarceration
IA	Iowa Code Ann § 663A.1	1997	Judicial Relief - Conviction dismissed, vacated or reversed	a) Claimant must not have plead guilty; and b) Claimant must have been incarcerated solely due to the wrongful conviction.	Aggravated misdemeanor or felony conviction with incarceration
IL	Ill Rev Stat Ch. 705 § 505/8	1945	Pardon - For innocence	Not addressed	Not addressed
MA	M.G.L. Ch. 258D	2004	Pardon - For innocence; Judicial Relief - Conviction vacated or reversed, dismissed charges, or "not guilty" verdict at new trial	a) Claimant must not have plead guility (unless nullified or withdrawn), b) must have been imprisoned solely due to the wrongful conviction, and c) can not be reasonably connected by the facts to a lesser crime.	Felony conviction with incarceration sentences of 1 yr or greater
MD	MD State Fin. & Proc. § 10-501	1963	Pardon - On the ground that conviction was in error	Not addressed	Convicted, sentenced, and confined
ME	14 Me Rev Stat Ann 8241-8244	1993	Pardon - For innocence	Not addressed	Incarcerated
MT	Mont. Code Ann. § 53-1-214	2003	Other - Exonerated by post-conviction DNA testing.	Not addressed	Felony conviction with incarceration
NC	NC Gen Stat §§ 148-82 to 148-84	1947 (2001)	Pardon - For innocence	Not addressed	Felony conviction with incarceration in state prison
NH	NH Stat § 541-B:14	1977	Other - “Found innocent”	Not addressed	Convicted and incarcerated in state prison
NJ	NJ Stat Ann §§52:4C-1 to 4C-6	1997		a) Claimant did not by his own conduct cause or bring about conviction; b) Claimant must have been incarcerated solely due to the wrongful conviction.	Incarcerated
NY	NY Ct. of Claims Act § 8-b	1984	Pardon - For innocence; Judicial Relief - Conviction reversed & charges dismissed on grounds consistent with innocence, case tried to acquittal, or statute on which the wrongful conviction was based violated either the US constitution or the NY Constitution.	Claimant did not by his own conduct cause or bring about conviction.	Felony or misdemeanor convictions with incarceration
OH	Ohio Rev Code Ann § 2305.02 & § 2743.48	(2003)	Judicial Relief - Conviction vacated or reversed & charges dismissed, because either an error in procedure resulted in the individual's release or it was determined by a court of common pleas that the offense of which the individual was found guilty, including all lesser-included offenses, either was not committed by the individual or was not committed by any person.	Claimant must not have plead guilty	Felony conviction with incarceration
OK	51 Okl. St. § 154	2004	Pardon - For innocence; Judicial Relief - Conviction vacated and charges dismissed on the basis of "actual innocence" of the crime for which the claimant was sentenced.	a) Claimant must not have plead guilty, and b) must have been imprisoned solely as a result of the wrongful conviction.	Felony with incarceration
TN	Tenn Code Ann §9-8-108 (a)(7) §40-27-109	1984 (2004)	Pardon - For innocence; Other - “Exoneration”	Claimant must not have willfully and intentionally committed an act or engaged in conduct that directly resulted in or contributed to the wrongful conviction.	Incarceration
TX	Tex Code Ann § 103	(2001)	Pardon - For innocence; Judicial Relief - On the basis of innocence.	Claimant must not have plead guilty.	Incarceration
WI	Wis Stat § 775.05	1913 (1987)	Other - Innocent of Crime	Claimant did not by his or her act or failure to act contribute to bring about the conviction and imprisonment	Convicted with incarceration
WV	W Va Code § 14-2-13(a)	1987	Pardon - For innocence; Judicial Relief - Conviction reversed & either charges dismissed or acquittal on retrial or statue under which the claimant was convicted violated either the US Constitution or the WV Constitution.	a) Claimant did not contribute to or bring about conviction; and b) Claimant's acts or omissions did not constitute a misdemeanor or felony.	Arrest or conviction with incarceration
Notes:
1	This table is based on a similar table created by Adele Bernhard (Associate Professor of Law, Pace University School of Law) in her article "When Justice Fails: Indemnification For Unjust Conviction," 6 U Chi L Sch Roundtable 73. (Last updated September 9, 2004.)
	http://www.innocenceproject.org/docs/Bernhard_Compensation_Chart.pdf
2	"Pardon for innocence" means the persons imprisoned must receive a pardon from the governor stating that such pardon is issued on the ground of innocence of the crime for which they were imprisoned.

State Legislation for Erroneous (or Wrongful) Convictions:
Structure of Trial (or Hearing)
Prepared by Greg Larkin1 for the Criminal Justice Policy Coalition, Mar. 2005
		Trial (or Hearing)
St.	Statute	Who Decides	Standard Of Proof	Additional Required Proof of Innocence	Rules on Evidence	Time Limits For Filing
AL	Code of Alabama §29-2-150 through 165	Verification by State Division of Risk Management; Judgment by the Committee on Compensation for Wrongful Incarceration; and Appropriation by Legislature.	Not addressed	Not addressed	Not addressed	2 years
CA	Cal Penal Code §§ 4900 to 4906	State Board of Control makes a rec. to the legislature	Not addressed	Claimant must prove the fact that the crime with which he was charged was either not committed at all, or, if committed, was not committed by the Claimant.	Not addressed	6 months after acquittal, pardon, or release and 4 months before new legislative meeting
DC	DC Code § 2-421 - 2-425	Civil Court	Clear & Convincing	Claimant must show that he did not commit any of the acts charged, or that his acts constituted no crime the max. penalty for which would equal or exceed his incarceration period.	Not addressed	Available to any person released after 1979
IA	Iowa Code Ann § 663A.1	District Court for liability; State Appeal Board or Civil Ct. for damages	Clear & Convincing	Evidence must prove either was not committed at all, or, if committed, was not committed by the Claimant (or lesser charge).	Not addressed	2 years
IL	Ill Rev Stat Ch. 705 § 505/8	Court of Claims	Preponderance of the evidence2	Not addressed	Not addressed	≤5 yrs., 15K max, ≤14 yrs., 30K max, >14 yrs., 35K max, with CPI increase for each year since 1996
MA	M.G.L. Ch. 258D	Civil Court	Clear & Convincing	Not addressed	Can not be excluded based on 4th, 5th, and 6th Amendment to the US Constitution and Article 12 or 14 of Part the First of the Mass. Constitution.	2 years
MD	MD State Fin. & Proc. § 10-501	Board of Public Works	“Conclusive”	Not addressed	Not addressed	Not specified
ME	14 Me Rev Stat Ann 8241-8244	Superior Court	Clear & Convincing	Innocent of the crime for which the person was convicted.	Not addressed	2 years
MT	Mont. Code Ann. § 53-1-214	Appropriated by the legislature and authorized by Dep. of Corrections	DNA testing	Not addressed	Not addressed	10 years
NC	NC Gen Stat §§ 148-82 to 148-84	Industrial Commission, but subject to judicial review	"Vindicated in connection with alleged offense"	Not addressed	At the hearing the claimant may introduce evidence in the form of affidavits or testimony to support the claim, and the Attorney General may introduce counter affidavits or testimony in refutation.	5 years
NH	NH Stat § 541-B:14	Board of Claims	Board must find by majority vote that claim is “justified”	Not addressed	The board shall not be bound by common law or statutory rules of evidence, but may admit all testimony having a reasonable probative value. It may exclude evidence which is in the opinion of the board immaterial, irrelevant or unduly repetitious.	3 years
NJ	NJ Stat Ann §§52:4C-1 to 4C-6	Superior Court	Clear & Convincing	Did not committ the crime for which he was convicted.	Not addressed	2 years
NY	NY Ct. of Claims Act § 8-b	Court of Claims	Clear & Convincing	Claimant did not commit any of the acts charged in the accusatory instrument or his acts did not con-stitute a crime.	Not addressed	2 years
OH	Ohio Rev Code Ann § 2305.02 & § 2743.48	Court of Common Pleas for liability; Court of Claims for damages	Preponderance of evidence3	Not addressed	Not addressed	2 years after finding by Court of Common Pleas
OK	51 Okl. St. § 154	State Civil Court	Clear & Convincing	Not addressed	Not addressed	No time limit
TN	Tenn Code Ann §9-8-108 (a)(7) §40-27-109	Board of Claims	Not addressed	Not addressed	Not addressed	1 year
TX	Tex Code Ann § 103	Administrative claim with comptroller or civil suit (but not both)	Preponderance of evidence	Not addressed	Only evidence from trial and pardon	3 years
WI	Wis Stat § 775.05	Claims Board	Clear & Convincing	Not addressed	Not addressed	None specified
WV	W Va Code § 14-2-13(a)	Court of Claims	Clear & Convincing	Not addressed	Not addressed	2 years
Notes:
1	This table is based on a similar table created by Adele Bernhard (Associate Professor of Law, Pace University School of Law) in her article "When Justice Fails: Indemnification For Unjust Conviction," 6 U Chi L Sch Roundtable 73. (Last updated September 9, 2004.)
	http://www.innocenceproject.org/docs/Bernhard_Compensation_Chart.pdf
2	Not in law.Based on Court of Claims Rule.
3	Not in law.Courts ruled by preponderance of evidence (Walden v. State, 547 N.E.2d 962)

State Legislation for Erroneous (or Wrongful) Convictions:
Compensation
Prepared by Greg Larkin1 for the Criminal Justice Policy Coalition, Mar. 2005
			Compensation
St.	Statute	Orig. Enact. (Amend.)	Maximum Awards	Factors to Consider	Expunge- ment
AL	Code of Alabama §29-2-150 through 165	2001	Minimum of $50,000 for each year of incarceration, but Committee can recommend a greater award to the legislature	Not addressed	Not addressed
CA	Cal Penal Code §§ 4900 to 4906	(2000)	$100 per day of incarceration	Not addressed	Not addressed
DC	DC Code § 2-421 - 2-425	1981	No maximum.(No punitive damages)	Not addressed	Not addressed
IA	Iowa Code Ann § 663A.1	1997	$50 per day & lost wages up to $25,000/yr & attorney’s fees	Not addressed	Not addressed
IL	Ill Rev Stat Ch. 705 § 505/8	1945	Not addressed	Not addressed	Not addressed
MA	M.G.L. Ch. 258D	2004	Fair and reasonable damages -$500,000 (no punative or exemplary damages)	Lost wages, circumstances of trial and proceedings, length and conditions of incarceration, and other factors deemed appropriate.	Yes (w/ hearing)
MD	MD State Fin. & Proc. § 10-501	1963	Actual damages and reasonable amount for counseling	Not addressed	Not addressed
ME	14 Me Rev Stat Ann 8241-8244	1993	$300,000 (no punitive or exemplary damages)	Not addressed	Not addressed
MT	Mont. Code Ann. § 53-1-214	2003	Provides educational aid	Not addressed	Yes (elsewhere)
NC	NC Gen Stat §§ 148-82 to 148-84	1947 (2001)	$20,000 per year with Max of $500,000	Not addressed	Not addressed
NH	NH Stat § 541-B:14	1977	$20,000	Not addressed	Not addressed
NJ	NJ Stat Ann §§52:4C-1 to 4C-6	1997	2x claimant’s income in the year prior to incarceration or 20K per year of incarceration, whichever is greater	Not addressed	Not addressed
NY	NY Ct. of Claims Act § 8-b	1984	Fair and reasonable damages	Not addressed	Not addressed
OH	Ohio Rev Code Ann § 2305.02 & § 2743.48	(2003)	$40,330 per yr and lost wages, prison costs, and attorney’s fees	Not addressed	Not addressed
OK	51 Okl. St. § 154	2004	$175,000 (no punative or exemplary damages)	Not addressed	Not addressed
TN	Tenn Code Ann §9-8-108 (a)(7) §40-27-109	1984 (2004)	$1,000,000	Relevant factors including the person's physical and mental suffering and loss of earnings	Yes (automatic w/ grant of exoneration)
TX	Tex Code Ann § 103	(2001)	25K per year to a max of $500,000; One free year of counseling if mutually agreed by Dep. of Mental Health	Legal expenses; lost wages; and medical expenses (including counseling)	Not addressed
WI	Wis Stat § 775.05	1913 (1987)	$5,000/yr, max $25,000 but Board may petition legislature for additional funds	Not addressed	Not addressed
WV	W Va Code § 14-2-13(a)	1987	Fair and reasonable damages	Not addressed	Not addressed
Notes:
1	This table is based on a similar table created by Adele Bernhard (Associate Professor of Law, Pace University School of Law) in her article "When Justice Fails: Indemnification For Unjust Conviction," 6 U Chi L Sch Roundtable 73. (Last updated September 9, 2004.)
	http://www.innocenceproject.org/docs/Bernhard_Compensation_Chart.pdf