Compensating the Wrongly Convicted

A coalition including members of Oregon’s Legislative BIPOC Caucus and Sen. Kim Thatcher (R-Keizer) want to make it easier for those wrongly convicted of felonies to recoup lost income.

Rep. Janelle Bynum (D-Clackamas)The Senate Committee on Judiciary and Ballot Measure 110 Implementation met on Feb. 7. The committee heard public testimony on Senate Bill 1584, which would allow individuals to petition for compensation if they were convicted of and imprisoned for a felony that was later reversed, vacated, pardoned by the governor or subject to a retrial during which the person was found not guilty. Eligible petitioners would include young people who were in the custody of the Oregon Youth Authority for at least a year.

“Justice for people wrongfully convicted should include a consideration that they have lost the opportunity to provide for themselves and their families,” Rep. Janelle Bynum (D-Clackamas) told The Skanner.

“It’s a step in the right direction of making amends and repairing the harm inflicted upon the innocent.”

Under SB 1584, compensation is calculated as $65,000 for each year the person was wrongfully imprisoned, and $25,000 for each year the applicant spent on parole or post-release supervision, or for each year they were required to register as a sex offender – the court would calculate based on the greater length of time.

Those who have been wrongfully convicted say such a process would allow them to rebuild interrupted lives.

“Compensation would provide financial security but also a sense of closure,” exoneree Lisa Roberts told legislators considering a similar bill last March. “The state wrongfully incarcerated me for 12 years, and I still struggle to make ends meet. But it is more than financial security, the ability to receive compensation is also about the state acknowledging they made a mistake and are taking responsibility for that mistake.”

Successful petitioners would also be reimbursed for attorneys’ fees and court costs associated with both the petition and the initial trial during which they were wrongfully convicted. Whether the compensation is provided as a lump sum or an annuity would be at the court’s discretion.

“Without a statute in place, the only avenue for a wrongfully convicted person to get compensation right now is through a civil lawsuit,” Laurie Roberts, state policy advocate at Innocence Project, said. “That process is usually long and difficult. Nationally, only a third of people exonerated through DNA have won lawsuits.”

Sens. Kayse Jama (D-Portland), Akasha Lawrence Spence (D-Portland) and Rep. Bynum join Sens. Thatcher, Chris Gorsek (D-Troutdale), Michael Dembrow (D-Portland), Sara Gelser Blouin (D-Corvallis), Kate Lieber (D-Beaverton), Floyd Prozanski (D-Douglas County), Janeen Sollman (D-Hillsboro) and Rep. Karin A. Power (D-Milwaukie) as chief sponsors of the bill, similar to last year's Senate Bill 499.

A Permanent Setback

Justice-involved individuals who have served prison time see on average a 52% drop in their annual earnings, according to a 2020 study released by the Brennan Center for Justice at New York University School of Law. Not only have they lost time in the job market and missed experience that would advance their pay scale status, but post-release prospects are dim for job seekers who must disclose their felony history.

“Before being wrongfully incarcerated, I had a comfortable job with the National Guard,” Roberts said. “In the years since my exoneration, I have struggled to find stable and good-paying jobs. Despite my attempts, the National Guard would not allow me to resume my previous job as a mechanic. I was accepted into a pharmacy tech program which was going to cost me about $28,000 in tuition fees. Luckily, with assistance from my supporters, the school established a scholarship program for wrongfully incarcerated individuals, which helped me with my tuition.”

Supporters of the bill emphasize that the trauma of wrongful incarceration is a considerable setback, even post-exoneration.

Earl Bain, who was given a rare governor pardon based on innocence after he was wrongfully convicted of abusing a child, spoke Tuesday of the compounding traumas he experienced even after his name was technically cleared.

“I spent six years in the Army, I served a year over in Afghanistan, and shortly after Afghanistan is when I went to prison,” Bain told the committee. “It’s been extremely difficult, to say the least, to go through all of that…basically living with a label I never should have been labeled with, and to me that took away any pride or honor that I had from the military.

"It kind of canceled all of that out, I don’t even feel like a veteran anymore.

"This bill is going to help me to step back from having to work all the time and just kind of re-absorb being a normal human being again, if that makes sense.”

Janis Puracal, executive director of the Forensic Justice Project“To some extent, exonerations tend to get glamorized in the press,” Janis Puracal, executive director of the Forensic Justice Project, told the committee last year. “Because exonerees don’t return to the life they knew when they went in, and that life is gone. But they’re also not returning to ground zero. They’re coming out to well below ground zero, and they’ve got to dig themselves out of a hole.”

Puracal added, “Every psychologist that I’ve come across has said the same thing: If you’ve been through a traumatic event, what you need is some period of time, whether it’s a year or five years, that you can take a step back and take that breath. Without having to worry about fighting to put food on the table and keeping a roof over your head. So this bill gives exonerees that ability to take that step back and take that breath.”

Puracal returned for Tuesday’s hearing and clarified that compensation payments would come from the general fund, and that individual counties would not be expected to pay damages or reimburse individuals for court fines and fees.

Joining the Majority

Oregon would join the federal government, Washington D.C., and 36 other states to legislate how the wrongfully convicted are compensated. Oregon would be the tenth state to allocate more than $50,000 per year of wrongful imprisonment.

Such restitution would not pose a considerable cost to the state, Steven Wax, legal director of the Oregon Innocence Project, testified.

Steven Wax, legal director of the Oregon Innocence Project“The OIP has been working now for seven years,” Wax told the Senate Committee on Judiciary and Ballot Measure 110 Implementation last year as they considered a similar bill. “We’ve received 750 requests for assistance, and we’ve closed more than 550 cases, telling those people asking for our help, sorry we cannot help. There have been three exonerations.”

According to the National Registry of Exonerations, only 23 exonerations have been granted in Oregon since 1989, when the database began. Wax said that of those cases, only 13 are potentially eligible for compensation under legislation being considered.

“The impact overall on the state and system in terms of numbers is relatively small,” he said.

Marge Easley, advocacy director for the League of Women Voters of Clackamas County, testified Tuesday in support of the bill.

“Underlying our support is the acknowledgement that racial bias contributes significantly to the inequities and injustices in our criminal justice system,” she said. “According to the National Registry of Exonerations, although Black Americans make up only 13% of the U.S. population, they make up 40% of the prison population, and almost 60% of all DNA exonerations in the country. We also want to point out that compensation for the wrongly convicted is a provision of numerous international human rights treaties, including the International Covenant on Civil and Political Rights in the American Convention on Human Rights.”

Kimberly McCullough, legislative director for the Oregon Department of Justice, said her agency “enthusiastically supports” the bill.

“Compensating people who have been wrongfully convicted is simply the right thing to do,” she said Tuesday.

“At the same time, we need to make sure we have clear and fair procedures to ensure that compensation goes to the right people.”

She listed improvements that had been made since SB 499, including clarifying that a conviction reversed because it was issued by a non-unanimous jury would not be sufficient to petition for such compensation, and that punitive damages may not be awarded in addition to compensation.

McCullough called the current bill and amendment “ready for primetime.”

A work session was scheduled for Feb. 9, after which the bill will likely be referred to the Ways and Means Committee.