Monthly Archives: May 2007

What is appropriate compensation for a wrongful conviction?


James Tillman was exonerated a few months ago and last week, the CT legislature voted to compensate him $5 million. On the other hand, Alan Cortzer was denied $1.25 million in compensation by Florida’s legislature. So, this CSM story asks, what do states owe the exonerated? (HT: Corrections Sentencing)

This is a question that an increasing number of states have had to answer in recent years, with the good work of defense attorneys and the Innocence Project, brought about by an advancement in DNA technology and science. But are states adequately prepared to deal with the exonerated? Should there be any remuneration for those wrongfully convicted?

As DNA exonerations become more plentiful – and more publicized – some states are moving on the compensation front. Of the 200 men who have been exonerated based on DNA evidence, about 45 percent have received some sort of compensation, according to the Innocence Project, with amounts that range from $25,000 to $12.2 million.

Twenty-one states, along with the federal government and the District of Columbia, now have standardized compensation laws on the books – offering exonerees amounts ranging from $15,000 total to $50,000 per year of imprisonment. Thirteen states have introduced bills this year to either create or improve compensation for the wrongfully convicted. Some of those bills, like the one that gave Mr. Tillman $5 million, dealt only with individual prisoners, but other states are trying to standardize the compensation.

Texas, where 13 men have been exonerated in Dallas County alone, is considering a package of bills that would, among other things, raise the compensation amount from $25,000 to $50,000 per year of incarceration.

Vermont – which hasn’t yet had a prisoner exonerated by DNA evidence – has passed a comprehensive bill that would provide between $30,000 and $60,000 per year of incarceration as well as access to healthcare and reintegration services. It’s currently awaiting the governor’s signature.

Connecticut did have a bill proposed this session that would have studied the creation of a standardized system, but it didn’t make it past committee.

But these are states that are providing for compensation. What about those that aren’t, like Florida? What of the Alan Cortzers?

“In Florida, if you’re a parolee they give you $100 and a bus ticket,” says Michael Olenick, the Tallahassee attorney who represented Crotzer pro bono. “Al Crotzer got no bus ticket, and no $100.”

He also didn’t get access to counseling, and he says he’s struggled with some things since his release: He still wants to turn his light off at 11:47 every night, for instance, and he keeps everything in his room neat enough to pass a cell inspection.

Neither Mr. Olenick nor Crotzer can be sure why the request for $1.25 million failed, especially after the Florida House unanimously approved it. Senate leaders said they didn’t have the money – a common reason that states cite in not providing compensation. In Crotzer’s case, some also suggested that lawmakers didn’t want to grant any more individual compensation bills, but instead wanted to pass a “global” bill that would address all cases. However, the three such bills that were introduced in past years didn’t go anywhere.

Some believe Crotzer may also have been hurt by the fact that he was convicted of a beer store robbery when he was 18 – a fact that would have excluded him from compensation under one of the laws proposed in Florida.

So what do you think? What would be adequate compensation? Here are some of the laws already on the books:

California: $100 per day of incarceration

Montana: Educational aid for those exonerated through postconviction DNA testing

New Hampshire:
Maximum of $20,000

New Jersey: Whichever is greater – twice the amount of the claimant’s income in the year prior to incarceration or $20,000, for each year of incarceration

Tennessee: Maximum total of $1 million

CT Senate passes harsh “Jessica’s Law” and “tender years” exception

Yesterday the Senate passed SB 1458 [scroll down to the first full bill discussed], also called “Jessica’s Law”. I’ve blogged about this bill in the past and it really does provide for stiff penalties. It increases the mandatory minimum sentence for sexual assault of a minor under the age of thirteen to twenty five years.

This is also the bill that creates the “tender years” exception to hearsay. My thoughts on this are well documented. I do not like it and I don’t think I ever will.

Not all is bad, though. They amended the “Romeo and Juliet” law to increase the permissible age difference between participants to three years instead of two.

The sad thing is that the bill was based partly on incorrect information:

While the current trend among lawmakers is to move away from mandatory minimum prison terms, Kissel said this was one instance in which such enforcement is necessary. Research has shown that many sex offenders are prone to a pattern of behavior and could offend again if given the opportunity, [Senator] Kissel said.

No, not many. The latest studies show that sex offenders have the lowest recidivism rates. Also notable is the fact that law enforcement agencies have come out against high mandatory-minimums because it makes it difficult to prosecute. Defendants are less likely to accept plea deals and prosecutors have less flexibility in structuring an appropriate sentence.

Here’s another news article with a quote from a prosecutor:

Stephen Sedensky, the State’s Attorney for Danbury Superior Court, applauded lawmakers for taking steps to protect sexual assault victims.

“The legislature realizes the seriousness of these type of offenses and wants the sentences to reflect that,” he said.

He added that the 25-year mandatory minimum for the aggravated sexual assault charge could lead to fewer defendants taking a plea agreement and more cases going to trial.

“It’s too soon to tell whether that will be good for the victims,” he said, noting that the victims could be called upon to testify during a trial. “I’m anxious to see how it will play out in court.”

Well, time will tell how these statutes are utilized and whether they stand up to Constitutional muster.

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Texas AG seeks to out anonymous blog commenters

Scott Henson, over at the always interesting Grits for Breakfast, has been following this story out of Bexar County in Texas (original post and follow up), which chronicles the efforts of the Texas AG, on behalf of Bexar County probation director Bill Fitzgerald to out anonymous blog commenters at a probation officers’ employee blog .

As part of an ongoing feud with his employees over whether the department will unionize, Bexar County probation director Bill Fitzgerald is seeking the identities of anonymous employee blog commenters on a relatively new blog called Bexar Me the Pain.

This is indeed very troubling, not only for those employees targeted, but for what kind of precedent it could set if the “outing” were permitted. Everyone seems to be pretty clear that the comments would be covered by the guarantee of Free Speech under the First Amendment [Note that (as far as I can tell) the AG is seeking the “outing” of the commenters and not the author of the blog.]

Scott asks:

I also wonder what Greg Abbott, the Texas Attorney General, thinks about his minions trying to out anonymous blog commenters, not because they libeled anyone but simply to expose them to possible retaliation? Why would Abbott allow his attorneys to bully Bexar probation officers this way?

And would Google have just turned the information over if plaintiffs’ attorneys hadn’t filed a motion to quash? I’ve wondered about this in the context of Texas Youth Commission commenters on Grits, and this makes me more curious than ever what information Google/Blogger keeps on IP addresses of anonymous blog commenters and under what circumstances they release the information?

Here [pdf] are all the pleadings in this lawsuit, but they total 270 some pages, so here’s the Motion to Quash, which should give you a basic idea of what it is all about. Grits’ coverage of the lawsuit is here and here.

Thoughts on chemical castration

Prof. Berman points to this story out of Oregon (via Corrections Sentencing) which says that the state is considering employing chemical castration to prevent “high-risk” offenders from re-offending.

The state is close to approving a Corrections Department budget that includes money to expand the state’s chemical castration program. If passed, the state would pay for high-risk sex offenders to receive twice-monthly shots of Depo-Provera, a testosterone-reducing drug.

Depo-Provera, originally developed as a contraceptive for women, creates sexual apathy in men by reducing the level of testosterone. European countries have used the drug since the 1960s to treat sex offenders. It’s less popular in the U.S., and Oregon is one of fewer than 10 states reported to have chemical castration laws.

Prof. Berman asks whether chemical castration (if proven to work) should be employed (actually, why shouldn’t it be). As readers might guess, I am uneasy with this proposition. There are several assumptions here: That we know that “high-risk” offenders will re-offend; that all “high-risk” offenders will re-offend. This does dip into some “Minority Report” territory. I’m quite uneasy by the idea that we will assume that all high-risk offenders are going to re-offend and we need to stop that by subduing the sexual urge by reducing levels of testosterone.

Those are some mighty assumptions and I’m uncomfortable with that. There are (have to be) better alternatives to this. What if we have an offender that, despite being “high-risk” is rehabilitated and wishes to live a normal life? I see visions of Buck v. Bell.

Btw, here are resources for chemical castration and resources against chemical castration.

Tell me how I’m wrong.

A heartening re-integration story

Reader Ilah points to this story about how a family (with three young children) has accepted a released sex offender into their neighborhood [I guess SC has no residency restrictions].

“My husband and I discussed it before we even met Paul [Allan] that we will not go at it like everybody else goes at,” said Cheri Irvin. “We will not run from him out of fear.”So the family made a decision.

“I think the best thing that we can do for someone in this situation, is to accept them back into society with limitations.”

As a result, Paul Allan is now welcome in their home, but not alone with their children. He considers Cheri to be like his sister. This hasn’t stopped neighbors from unleashing their anger, though.

It can be a difficult commitment, because anger at Allen can be directed toward the Irvins.”I have some people that refuse to even be around me,” said Cheri Irvin. “And if any of my things are near them, it’s like, don’t touch them because they are friends.”

“We’ve had notes on our front door warning us he’s a sex offender and we need to stay away from him and all that,” said Joshua.

“It’s a feeling of rejection,” said Allan. “And hate, just pure hate for me.”

A letter was sent to the news station (which lead to the story), which alleged that he was “bothering children and handing out candy on Halloween” (which apparently is against the law). Turns out the kids were the Irvin’s.

This is the way to go. Reintegration into society has to be accompanied by inclusion, not rejection. Rejection, in my opinion, serves to only drive people further into their bad habits and we have re-offenders.

I’m glad to see stories like these, because it preserves my faith in humanity.

Monday Morning jumpstart – Tuesday version


With the holiday yesterday, the jumpstart has been delayed by a day. Here are some interesting stories I hope you folks like:

Public Defender blogs search


Added to the sidebar on the right is a public defender blog specific search. Many thanks for Greg of PD Stuff for sharing the code.

Taken from his post announcing the search box:

At the top of the sidebar is a search engine created especially for Public Defender Stuff.

The engine only searches these sites:

* All of the public defender blogs, including a couple of defunct sites

* SCOTUSblog
* Sentencing Law and Policy
* Legal Reader
* How Appealing
* Capital Defense Weekly
* CrimProf
* TalkLeft
* Grits for Breakfast
* Trial Ad Notes
* Indefensible
* JuvieJournal
* Sui Generis
* Robert Ambrogi’s Law Sites
* Sex Crimes

I have also added a few more sites to the this list:

  • The Confrontation Blog
  • Eyewitness ID Blog
  • SexCrimeDefender
  • Appellate Law & Practice
  • Austin Criminal Defense
  • Crime and Federalism
  • Criminal Appeal
  • Defending people…
  • AEDPA law and policy

The idea is to separate the wheat from the chaff before the search even starts, focusing on the blogs out there that we already know and trust. Search, for example, “search and seizure” and compare it with a general-web Google search. The general search returns as its top links an overview of the concept, while the PD Stuff search brings you recent developments, thoughts and nuances from some of the best legal minds in the business.

Try it out and see what you think, then let me know if you think the search could benefit by adding a specific site or blog.

The search is powered by Google Co-op and if you’d like to add it to your blog I can send you the code to put on your sidebar. Just send me an email.