Remembering why Texas increased exoneree compensation

Mike Ward at the Austin Statesman reported that "the state has paid more than $65 million to 89 wrongfully convicted people since 1992," and that "some lawmakers are questioning whether Texas’ compensation system [for exonerees] is too generous, at a time when schools, law enforcement and health programs need billions more in funding." Ward's story - which otherwise provides a good synopsis of the main innocence-related issues in play at the 83rd Texas Legislature - doesn't directly quote anyone openly arguing for reduced compensation levels, and  to my knowledge no such legislation has been filed. I doubt it will be. True, the amount paid to exonerees has increased since the 81st Legislature increased compensation rates. But it's worth remembering why compensation was increased in 2009 to current levels - $80,000 per year incarcerated on a false conviction and a like amount in a lifetime annuity. (In the interest of full disclosure, I lobbied for that bill on behalf of the Innocence Project of Texas.)

When exonerees accept compensation they give up their right to sue for damages for what happened to them. Some exonerees who took compensation at earlier, lower statutory amounts - at first $25,000 then $50,000 per year incarcerated, with no annuity - fairly quickly ran through their money (after the tax man took a bite) and some became destitute. Most famously, exoneree Wiley Fountain was homeless and living out of a shopping cart on the streets of Dallas just a few years after receiving compensation.

As a result, most exonerees began eschewing state compensation and filing civil rights suits against the counties and law enforcement agencies involved in their false convictions. Juries, after all, were proving generous in such circumstances. Dallas in particular faced more suits than anyone else because they kept more old DNA evidence for retesting than most other jurisdictions. But really, every jurisdiction where a false conviction occurred was likely to find itself facing expensive civil rights litigation. A tort was committed against these men, after all - many years, sometimes decades of their lives were stolen by the state on false pretenses - and under Texas law they deserve compensation, or at least the chance to ask a jury to give it to them.

So, as a practical matter, the higher amounts in Texas' innocence compensation statute were considered at the time a form of tort reform - a way to avoid lengthy, ponderous litigation against local agencies while more quickly compensating people who'd truly been wronged. Reduce the compensation amount and it's likely the litigation resumes. So pick your poison.

Besides, the rate of DNA exonerations has somewhat subsided (though another one is expected out of East Texas this week), and the amount paid to exonerees is paltry compared to the "billions more in funding" needed by "schools, law enforcement and health programs." Certainly, the sums paid to people who've been falsely convicted are hardly why Texas doesn't better fund education or healthcare.