Facing Freedom: States’ Failure to Compensate the Wrongfully Convicted Emily T. Lurie Government Honors Thesis Georgetown University Defended April 30, 2010 2 Acknowledgements Completing this thesis would not have been possible without the help and support of several people. I want to first thank my parents for their guidance and encouragement throughout this process. I am extremely grateful to my mom, who traveled with me to Williamsburg, VA to conduct an interview for my thesis, and to my dad for attending the 2010 Innocence Network Conference with me in Atlanta. I would also like to thank my boyfriend Alex for offering his constant support and enduring countless conversations about wrongful convictions. My thesis advisor, Professor Marc Howard, has been an incredible source of inspiration and guidance over the past year. When I first decided to write on wrongful convictions, I was delighted to learn that there was a professor in the Government Department who had such a personal connection to the topic and shared my passion for issues related to criminal justice reform. Additionally, I am very appreciative for all of the guidance that our program director, Professor Eric Langenbacher, has offered over the last three semesters. Professor Langenbacher was the inspiration behind my research on how other countries approach the issue of compensation, which is presented in Chapter 5 of the thesis. I am also grateful to Professor Michael Kessler for being willing to serve as a second reader and participating in my defense. I also want to thank the individuals who took the time to speak with me about my research: Pam Oddo and Eric Nelson in Representative McGeehan’s Office (D-PA), David McGlaughlin in Representative Caltagirone’s Office (D-PA), Stephen Bruder in Senator Ferlo’s Office (D-PA), Duquesne University Professor John Rago, Senator Kent Rogert (D-NE), Carol Chamberlain in Assemblyman Solorio’s Office (D-CA), former Assemblyman Scott Baugh (R- CA), Cory Pomeroy in Senator Duncan’s Office (R-TX), Damien Brockmann in Representative Anchia’s Office (D-TX), Rep. Stephanie Stuckey Benfield (D-GA), Georgia Innocence Project Director Aimee Maxwell, Senator Frederick Quayle (R-VA), Delegate Kenneth Alexander (D- VA), Adisa Muse of the Virginia Legislative Black Caucus, former Arizona Justice Project volunteer Scott Seymann, Representative Kyrsten Sinema (D-AZ), Lola Vollen of the Life After Exoneration Program, and Pace University Law Professor Adele Bernhard. Most of all, I am extremely grateful to Beverly Monroe, her husband Dick, and her daughter Shannon, for inviting me to Williamsburg and being willing to speak with me about her wrongful conviction and exoneration. Finally, I want to again thank Professor Langenbacher for giving me the chance to participate in the Honors Program. The issue of wrongful convictions has been a passion of mine for several years now, and completing this thesis has been an incredible experience for me, one that has reaffirmed my desire to attend law school and pursue criminal defense. I am very thankful and fortunate to have had this opportunity. 3 Table of Contents Preface……………………........…………………………………………………………………..4 Research Design………………………………………………………………………………......7 Chapter 1: Wrongful Convictions in the United States………….………………………………10 Chapter 2: Compensating the Wrongfully Convicted……………..……………………………..21 Chapter 3: Why States Fail in Providing Adequate Compensation……….……………………..33 Chapter 4: The Case of Beverly Monroe………………………………………………………...66 Chapter 5: International Compensation…………………………………………….……………79 Chapter 6: Conclusion……………………………………………………………………......….96 Appendix A: Table of Interviews and Contacts…………………….…………………………..105 Bibliography……………………………………………………………………………………106 4 Preface *** “Among…the most glaring of injustices are erroneous criminal convictions of innocent people. The State must necessarily prosecute persons legitimately suspected of crime; but when it is discovered after conviction that the wrong man was condemned, the least the State can do to right this essentially irreparable injury is to reimburse the innocent victim, by an appropriate indemnity, for the loss and damage suffered. European countries have long recognized that such indemnity is a public obligation. Federal and state governments in the United States ought to adopt the same policy, instead of merely releasing the prisoner from custody by pardoning him for a crime he never committed and without any admission of error or public vindication of his character”(1932). 1 *** Arthur Lee Whitfield spent more than 22 years behind bars for two rapes that he did not commit before post-conviction DNA testing excluded him as the perpetrator. He was convicted in 1982 and sentenced to 63 years in prison after entering a guilty plea in order to avoid a life sentence. After he was convicted, the Commonwealth of Virginia ordered the DNA evidence from his case to be destroyed, which was standard procedure at the time. 2 Whitfield went before the parole board more than a dozen times while in prison, but he was always rejected for refusing to admit guilt. Fortunately, a serologist in the state crime lab, Mary Jane Burton (now deceased), had ignored state protocol and saved samples from some of the cases she was working on. She had saved evidence from Whitfield’s case, which was later tested and found to exclude Whitfield as the perpetrator, identifying another man as the actual rapist. Whitfield was released from prison in 2004, and he stood the entire 100-mile bus ride home because there were no seats available.3 At the time of his release, there was no Virginia statute that could provide Whitfield with the money and support he needed to begin to rebuild his life. 1 Edwin M. Borchard, Convicting the Innocent (New Haven: Yale University Press, 1932), vii. 2 Virginia stopped the destruction of evidence in 2001, when the state passed a law allowing prisoners to apply for DNA testing. 3 Geoff Dutton, “High cost of freedom: Despite innocence, he’s labeled a sex offender,” Columbus Dispatch , January 30, 2008, http://www.dispatch.com/live/content/local_news/stories/2008/01/30/dna4.html (accessed November 11, 2009). 5 In order for Whitfield to be released immediately after the DNA results came in, the state had released him on parole. His lawyer then proceeded to file a writ of actual innocence, a declaration that would allow Whitfield to be exonerated of the charges. The judge, however, rejected the declaration, ruling that a close reading of Virginia law indicated that only incarcerated individuals were eligible for writs of actual innocence. Everyone was caught by surprise. Even the prosecutor affirmed Whitfield’s innocence; after all, the DNA tests had identified another man as the actual perpetrator. The State Supreme Court affirmed the judge’s ruling. 4 Even though Whitfield was still registered as a sex offender, a manager at a local credit union read about his story and agreed to hire him. He worked there for two years, enjoying his job, until an outsider discovered that a convicted felon was working at the bank and the manager was forced to let him go. 5 Whitfield tried to convince the governor to pardon him, but ran into trouble when one of the victims vehemently opposed the issuance of a pardon, still adamant that Whitfield was her rapist. 6 He was not pardoned until 2009, and it was only then that he became eligible for compensation. Five years after his release, in August 2009, Virginia lawmakers agreed to compensate Whitfield with nearly $633,000 for the 22 years he spent behind bars, equivalent to less than $29,000 per year of incarceration.7 Today, Whitfield works in a produce factory and is undergoing treatment for liver cancer. He plans to use the money to help pay medical bills. 8 4 Ibid. 5 Ibid. 6 Ibid. 7 Julian Walker and Michelle Washington, “ Wrongly convicted Norfolk man to get $633,000 from Va., ” PilotOnline.com , August 20, 2009, http://hamptonroads.com/2009/08/wrongly-convicted-norfolk-man-get-633000- va (accessed April 19, 2010). 8 Mid-Atlantic Innocence Project, “Whitfield Finally Receives Compensation,” entry posted August 21, 2009, http://www.exonerate.org/2009/whitfield-finally-receives-compensation/ (accessed April 19, 2010). 6 Sadly, Whitfield’s story is not an unfamiliar one. Only 27 states have passed statutes to provide compensation to wrongfully convicted individuals, and in most cases, the amount of compensation awarded is grossly inadequate. Further, as Whitfield’s story illustrates, exonerees need far more than just money to get back on their feet. Many were convicted at young ages, depriving them of a college education or job training and thus limiting post-exoneration employment opportunities. Others cannot afford housing and are forced to move in with parents and grandparents. Like Whitfield, some are even unable to get their records expunged and continue to be labeled as criminals long after their release. Additionally, even beyond the quantifiable needs, severe psychological effects are practically inevitable after serving lengthy prison sentences. Individuals like Arthur Lee Whitfield need help facing the freedom that exoneration provides, a freedom that cannot come to fruition without the provision of adequate compensation and social services. 7 Research Design Much has been written on the problem of wrongful convictions since attorneys Barry Scheck and Peter Neufeld founded the Innocence Project in 1992. What factors contribute to wrongful convictions and how such miscarriages of justice can be prevented have all been discussed at length. The extreme emphasis on causes and potential solutions, however, has had the unfortunate effect of overshadowing the importance of providing assistance to the victims of our flawed justice system. This thesis aims to partially fill in the gap by exploring the reasons why states have failed to provide adequate post-exoneration compensation and social services to the wrongfully convicted. In Chapter 1, I will provide an introduction to the problem of wrongful convictions in the United States, beginning with a short summary of demographic statistics that illustrate which groups of people have been most affected by wrongful convictions.