The recent exonerations of wrongfully convicted men in Missouri has prompted calls to reform the Missouri wrongful conviction compensation statute. Improvements to that statute would help those imprisoned for crimes that they did not commit and would also benefit the state of Missouri.
According to the National Registry of Exonerations (where I am a special correspondent), 53 people convicted of crimes in a Missouri state court have been exonerated since 1989. Only nine have received compensation under the state statute. My research shows that to be among the lowest in the country. Nationwide, states have paid compensation covering about half of the years lost to wrongful conviction. It is just over 20% in Missouri.
The reason is that compensation is available in Missouri only to those who were exonerated as a result of DNA analysis. Missouri is the only state in the country with that restriction. To be sure, this restriction ensures that only those clearly innocent are compensated. However, only 15 Missouri exonerees were freed as a result of DNA analysis. Despite the popular belief that DNA accounts for most exonerations, nationwide it is actually about 18%. For that reason, no state statute (except Missouri’s) any longer requires the claimant to be a DNA exoneree, but they do require that the claimant prove their innocence.
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The Missouri statute is out of step with most states in another way as well. It compensates exonerees only $50 per day of wrongful incarceration, the cost of a parking ticket. State statutes nationally are not terribly generous, but most pay exonerees at least $50,000 per year (about $136 per day). Since Missouri’s statute was passed in 2006, the state has paid an average of only $160,000 per year to its exonerees. Missouri’s 2023 fiscal year budget is $48 billion; according to the State Treasurer’s website, it spent over a half-million dollars in fiscal year 2023 on prizes and awards.
This is not a red state/blue state issue. Kansas and Indiana have recently passed good wrongful conviction compensation statutes. Idaho and Montana not long ago improved theirs significantly. Indeed, the proposed House Bill 327, now before the Missouri General Assembly, is patterned on the Kansas statute. So far, Kansas has compensated over half of its exonerees, accounting for 72% of the total years lost to wrongful incarceration.
HB 327 would be a big improvement. But imagine you were wrongly incarcerated for decades during your prime earning years. Some of your family members passed away or spent all they had on lawyers to free you. You leave prison with no housing, no job, no health care, not even an ID. House Bill 327 would permit a court to award counseling, housing assistance and tuition assistance, but only after the exoneree wins a civil lawsuit. Those often move slowly.
Consideration of HB 327 affords Missouri legislators an opportunity to do right by those wrongfully convicted of crimes and to catch up with peer states that have heeded the moral call to support those so terribly wronged by the criminal justice system. But, the Show-Me state can also show other states how to provide modest emergency help to recently released exonerees who are transitioning to long-awaited freedom. It quickly supports parolees who actually committed crimes; it can do the same for the wrongly convicted.
HB 327 potentially would help the state in one other way. Generally, states do not cause wrongful convictions. The actions, sometimes unconstitutional, of local police and other officials do. The proposal would allow exonerees to file civil rights cases against those directly to blame for the wrongful conviction. If the exoneree wins, the person or entity responsible for the wrongful conviction would have to repay the state for any state compensation the exoneree received. The state recovers its payout when the local municipality is found responsible. Then, the cost of wrongful conviction rests on the entity that caused it rather than the state.
Missouri has a chance to be a leader to help the wrongly convicted. It should take it.
Jeffrey S. Gutman is a professor of clinical law at George Washington University Law School. He has represented four men exonerated of crimes by DNA evidence who spent decades in jail on civil claims against the District of Columbia government.