Disparities in exoneree compensation based on evolving law

The Texas Tribune this week ran a feature by Brandi Grissom voicing criticisms of differing compensation awards for Texas exonerees depending on when they applied for compensation. The article featured the story of Nax Karage, who:

Nax Karage spent more than six years in prison for the rape and murder of his girlfriend. But in 2005, DNA evidence proved he was innocent, and he was released. The state paid him about $158,000 in compensation.

DNA evidence also helped exonerate Ricardo Rachell. He was freed in 2008 after spending six years in prison on a sexual-assault conviction. Texas paid him about $493,000.

“It’s not right, and it’s unjust,” Karage said. “We all did the same time and went through the same situation.”

Grissom goes on to give an effective recitation of the various permutations of Texas' compensation statute, which grew more generous over the first decade of the 21st century:

Until 2001, compensation was available only to those who had initially pleaded not guilty and who had received a full pardon from the governor. An exonerated prisoner could get up to $25,000 for pain and suffering, and damages were limited to $250,000.

In 2001, lawmakers increased the compensation to $25,000 for each year served, or $500,000 if the inmate served more than 20 years. They also eliminated the provision that required the person to have pleaded not guilty.

Then, in 2007, lawmakers doubled the compensation to $50,000 per year of imprisonment and $100,000 per year on death row, and they eliminated the cap.

News reports about Wiley Fountain surfaced in 2008. Five years after he was cleared of the aggravated sexual assault charge that had put him behind bars for 15 years, Fountain was found homeless and sleeping behind a Dallas liquor store. He had quickly burned through the lump sum of about $388,000 he had been awarded, spending it on lawyers’ fees, taxes and what he reportedly called “living large.”

So in 2009, lawmakers adjusted the compensation law again. Now, Texas prisoners who are exonerated are eligible for up to $80,000 for each year of wrongful confinement. They also receive a monthly annuity that is worth another $80,000 for each year they were in prison. They can request state health insurance and free tuition at public universities. It is the most generous compensation law in the nation.

The 2009 change also made those who had received compensation under the old law eligible for some of the new provisions, including the annuity, the insurance and the education benefits. But the law did not retroactively affect the lump-sum payouts that some former inmates had already received. So inmates who were paid at a rate of $25,000 per year, like Karage, are not eligible to be compensated at the new lump-sum rate of $80,000 per year.

I've met Mr. Karage several times and his story is one of the most compelling on this question. I certainly understand why he feels it's unfair that other exonerees received much more money than him. But as state Sen. Rodney Ellis told the Tribune, “Unfortunately, there has been consistent resistance in the Legislature to make the lump sum-payment aspect of these reforms retroactive.”

Having lobbied for that bill on behalf of the Innocence Project of Texas back in 2009, I can say first-hand that merely getting the annuity applied to past exonerees was a big "get." At the time, at least, there was little if any legislative support for retroactively boosting lump sum payments, in part because, by accepting compensation in the past, those folks had already waived their right to sue. (A big, if usually unstated, reason why compensation was expanded in 2009 was to settle a raft of lawsuits from exonerees who'd filed civil rights claims instead of accepting compensation at past, lower amounts.) Given the political reality on the ground, those advocating for the new law, myself included, judged that getting past exonerees something was better than nothing. I still think that's right, though I wish things had turned out better for Mr. Karage and others similarly situated. The harm done to him was no less than those exonerated several years later, and in a perfect world he'd deserve the same as those released more recently. In a perfect world, of course, all these folks wouldn't have been falsely convicted in the first place.

The Trib story was accompanied by a sidebar with an interactive chart of all exonerees who've received compensation so far, including the amounts of money received and time served - 72 people so far have received more than $42 million in compensation for more than 700 years spent in prison based on false convictions. The bulk of that sum was handed out in the last two of years.