Colorado does not have statutes that command or set rules for the financial compensation of people who have been exonerated after being convicted of crimes they did not commit.
Colorado is considering the need for creating such a compensation statute. The Colorado District Attorneys Council discussed the issue a few weeks ago. Senator Pat Steadman has been looking into the compensation statutes of the District of Columbia and 26 states that have them.
Without compensation statutes, Robert Dewey and so many others who have been proven innocent after decades of wrongful imprisonment have to scrape by in poverty. Dewey, who spent 18 years in prison for a rape and murder he did not commit, currently suffers from more than his loss of time.
He receives food stamps, because he cannot work.
He cannot work, because of a back injury he received while in prison.
He cannot pay the medical bills to remove the metal rods and plates that a prison doctor placed in his spine to fix this injury.
And he cannot get employment, because he has not worked in more than 18 years and lacks familiarity and skills with the advances of the last 18 years.
Had he not gone to prison, these problems would probably not exist.
Colorado must consider not only which state has the statute most suitable for it, but also what the other 27 are leaving out.
Dewey has all the adversities, caused by his time in prison, that would easily grant him $50,000 for every year he was wrongfully incarcerated if he had been in Florida or another state with a similar statute.
Under paragraph (e) of Chapter 961.06 Florida Statutes (2012), “the total compensation awarded under paragraphs (a), (c), and (d) may not exceed $2 million.” Florida’s statutes do offer the opportunity for exonerees to be provided with “the amount of any reasonable attorney’s fees and expenses incurred and paid by the wrongfully incarcerated person in connection with all criminal proceedings and appeals regarding the wrongful conviction.” Florida, however, does not allow for the costs associated with seeking compensation for the wrongful conviction.
These incurred expenses are exactly what exoneree Jeffrey Deskovic asks the Innocence Project’s (New York) Exoneration Compensation Report to address to the State of New York, which has a statute requiring the exonerated person to file suit against the State and prove damages. Deskovic says the State, upon losing the compensation lawsuit, should take care of the litigation costs and the fees paid to the exonerated person’s attorney to pursue the lawsuit.
His article for Examiner.com applauds and appreciates the Innocence Project’s work in exonerating him, but adds that its report needs to ask a little more of the State.
He mentions that, of course, no amount of money can replace the pain caused by their time in prison that will affect them for the rest of their life, but that “it is adding insult after injury for a state to tell an exoneree that the pain and suffering of wrongful imprisonment that they endured was only worth $50,000,” and then lessen the amount by making them cover their own attorneys fees.
We do not want to demonize the existence of these costs. Lawyers must get paid for their work. However, the State made the mistake in convicting an innocent person. The least it can do is try to make up for that mistake without further penalizing the exoneree. In New York, the court determines the money paid per year of wrongful incarceration with a damage assessment in mind. In Florida, the award is a set amount. Pilfering from that amount only lessens the amount of compensation that can never make up for the time lost to the criminal system. Indeed, it only serves to make the exoneree less able to be self sufficient in a world that is vastly different than the one he or she left at the time of the wrongful conviction.
Deskovic does think that the money paid to exonerees should depend on how their career or earning potential was diminished by their time in prison. He writes: “certainly the lost wages of a middle-aged adult who had dropped out of high school could not be equal to a college educated exoneree.”
Dewey is poor because of his time in prison. His health gives him more to worry about financially than attorney’s fees. He is plagued by the cycle of not being able to get money because of his health and not being able to fix his health because of not having money. In Florida, Dewey would receive a $900,000 annuity, which could be paid out in as little as 10 years or over remainder of his life and would earn interest. All things considered, the amount received annually is hardly enough to cover his basic living needs and medical expenses.
If any person is in need of more than the $50,000 standard in states like New York and Florida, it is Robert Dewey and exonerees like him. Colorado can place a minimum and maximum on total compensation awarded, as Florida and others do, but it must remember to assess each exoneree’s situation to determine the appropriate amount of money that they need to pay for the actual damage the wrongful imprisonment caused them, and then some.