Mass. Act to provide Compensation for Certain Erroneous Felony Convictions
By Greg Larkin, April 2005
After stalling several times since first being introduced in 1999, a much-needed bill for the compensation of certain erroneous felony convictions finally was signed into law on Dec. 30th of 2004. Massachusetts (and Suffolk County in particular) has an astonishing record of erroneous convictions surpassed only by Illinois (and most famously Chicago). In 2004, this embarrassing record was splashed across newspaper headlines with several high profile releases including Laurence Abrams who, when a judge overturned his 1974 murder conviction, became the 22nd person in Massachusetts to be released because of a wrongful conviction in the past 22 years and the ninth since 1997. Among the wide ranging revelations from these investigations were overzealous law enforcement officers, an incompetent fingerprinting lab, perjured testimony, and widespread eyewitness misidentification. Following this crescendo in coverage, Massachusetts has joined 18 other states, the District of Columbia, and the federal government by creating a process by which these erroneously convicted could more easily claim compensation. (Three charts comparing those other statutes are on this website here.
The erroneous conviction compensation bill that finally passed into law was originally sponsored by Rep. Patricia Jehlen (D. Somerville) in the House and Senator Dianne Wilkerson (D. Suffolk) in the Senate. It reached the Governor’s desk in July of 2004, but the Governor sent back the bill with several suggestions, before finally being passed into law at the end of the year. It has been codified as M.G.L. Chapter 258D and is found here.
The bill is a must-needed if subtly flawed first step. With some restrictions, the law allows those who have been pardoned or who have been granted judicial relief to have a civil trial for compensation. Its structure and much of its language echo such model legislation as proposed by the Innocence Project; however, there are several significant departures from this model.
The eligible class of persons includes all convicted of felonies with the exception of those who are sentenced to periods of incarceration of less than one year. An additional important restriction is that the claimant did not commit any felony or lesser crime arising out of, or reasonably connected with, the facts supporting the original indictment unless that lesser crime is a misdemeanor whose maximum sentence plus one year is less than the actual period of incarceration served. This eligibility of persons was highly debated. There were unsuccessful efforts by some, including the Governor, to exclude those whose own conduct caused their conviction and also those who were granted judicial relief without having their charges discharged but rather received a “not guilty” verdict in their new trial. One restriction did become part of the law, however. One of the Governor’s recommendations that those pardoned must also receive a letter from the Governor asserting his belief of innocence has been included.
The trial to determine the compensation also has some important divergences from the initially proposed bill. In these trials, the law explicitly forbids the exclusion of evidence traditionally prohibited by the 4th, 5th, and 6th amendments to the U.S. Constitution and Articles 12 and 14 of Part the First of the Mass. Constitution, which include protections against unreasonable search and seizure (4th and Article 14), due process (5th), protection from being compelled to self-incriminate (5th and Article 12), and the right to confront the witnesses against him or her in court (6th and Article 12). The inclusion of the 6th amendment in the above-mentioned list came from the Governor’s suggested edits to the original legislation.
In order to “fairly and reasonably” compensate the victim of the erroneous conviction, the court may find for cash damages up to $500,000 in addition to physical and mental health services and an educational discount of 50% against tuition and fees at state and community colleges. The compensation is exempt from state taxes except for any portion of the compensation used to compensate the attorney bringing the successful claim.
Lastly, upon a result in favor of the claimant and following a separate court hearing, an order may be sought by the claimant to expunge or seal the records of the claimant maintained by the government. Certain agencies, including law enforcement, will be given the opportunity at the hearing to argue whether the hindrance on future prosecution of other crimes and other persons by such expungementor sealing outweighs the claimant’s interests of privacy and justice.