How do you place a value on lost time for the wrongfully convicted?

Yesterday afternoon I had the chance to chat briefly with Dallas County District Attorney Craig Watkins and I brought up the case of Charles Chatman, the latest innocent man freed as a result of DNA testing in old Dallas County cases. "He won't be the last," Watkins assured me, shaking his head as though in disbelief.

Sometimes, I guess, the wheels of justice turn slowly, but I'm glad they're turning!

At least 39 wrongfully convicted people have been exonerated in Dallas County since 2001, 15 through DNA testing and another 24 when a lying informant set them up with fake drugs. Following the blog Tort Deform, I'd earlier asked how individuals should be compensated who are wrongfully convicted?

Many states do not compensate exonerated prisoners at all, or leave it to the civil courts; the New York Times last year found that 40% of inmates exonerated by DNA nationally received no compensation. In Texas, a statutory $50,000 per year incarcerated compensation rate has been established, doubled just last year from $25,000 which was the original amount when compensation was first put into law earlier this decade.

In that vein, I'd mentioned last week that "Over the years as a corporate defense lawyer, my father has spent a great deal of time arguing in and out of court over the value of lives lost or the financial consequence debilitating injuries, and I've always thought based on that second-hand experience that the $50,000 per year Texas compensates wrongfully convicted people is probably too low."

So I emailed my Dad, Tom Henson, a Tyler-based barrister who's practiced Texas tort law for more than 45 years and is the president-elect of the Texas Association of Defense Counsel. Here's how he replied:

I agree that, on its face, the figure of $50,000 sounds low.

You asked me how a monetary value is calculated in a wrongful death and survival case under our tort law.

Under the "survival" statute, the survivors/estate of the decedent are entitled to seek recovery of those damages the decedent would have been entitled to had he or she survived; that is, for pain and mental anguish suffered up to the time of death, medical expenses, and the estate would be entitled to seek recovery for funeral and burial expenses.

Under the "wrongful death" statute, the statutory beneficiaries of the decedent are entitled to seek recovery of the damages they have suffered for pecuniary loss in the past (loss of the care, maintenance, support, services, advice, counsel and reasonable contributions of a pecuniary value that the beneficiary would have received from the decedent had he lived); pecuniary loss in the future; loss of companionship and society sustained in the past and then in the future (loss of companionship and society means the loss of the positive benefits flowing from the love, comfort, companionship and society the beneficiary would have received had the decedent lived); and mental anguish experienced by the beneficiary in the past and in the future.

Neither of these causes of action exactly fit what you are talking about, but this does answer the question you asked me. Obviously, the dollar amount to be awarded is rather subjective except for the loss of income and support which usually has a specific factual basis; mental anguish, for example, is not easy to calculate or predict. The type of person who was killed has a lot to do with what a jury might award, as does the nature of the relationship between the decedent and those bringing suit.

To calculate the value of a claim for wrongful imprisonment would probably take into account the elements of lost wages, lost consortium with one's family, mental anguish and the like. I am saying this without researching the issue, and I do not recall having personally handled such a case in recent years. However, in the ordinary situation the figure of $50,000 does sound rather low. However, if the claimant was a low wage earner or had no real history of wage earning capacity, and if that person's conviction was not the result of intentional misconduct on the part of the prosecution, the figure might be a bit high. The situation depicted in Grisham's The Innocent Man might call for a much higher figure, for example, and a conviction that was not the fault of the prosecutor but the result of a good-faith mistaken identification by the victim (proven erroneous by DNA later) might call for something lower.

Since most actually innocent people would likely go on to hold jobs and enjoy increasing income over the years, and since they would qualify for most other categories of compensatable loss, I take it that the Legislature probably low-balled reimbursements to wrongfully convicted prisoners, even after Sen. Rodney Ellis' laudable legislation last year to boost the figure to $50K.

At a minimum, wrongfully convicted people suffer lost wages (in 2006, median income for a Texas male employed full time was $38,797), lost consortium with one's family, and plenty of mental anguish. Plus, both they and their families surely suffer a loss of "companionship and society," using this terminology. If each of those may be compensated under tort law, the total could add up pretty quickly in the case of a innocent person who's been exonerated.

At $50,000 per year, Texas may be getting off pretty cheap.

RELATED: See this interview with John Grisham on the problem of wrongful convictions.