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The Government's Duty to Compensate People who are Wrongfully Imprisoned

The Government's Duty to Compensate People who are Wrongfully Imprisoned


            In 2006, there were approximately 21.4 million criminal cases opened against defendants in the United States.[i] These 21.4 million new criminal cases were a record that has not since been broken. While this number has dropped in the years since, in any given year there are millions of new criminal cases filed by prosecutors around the county.

In these cases, except in those where the prosecutor dropped the charges, there is a defendant who must evaluate his options as to whether he will enter a guilty plea or set the matter for trial. The majority of criminal cases result in a guilty plea or verdict, followed by sentencing, resulting in the conclusion of the matter. For a very few who are pardoned, or have their conviction overturned, their case will not be over, they may seek compensation for a wrongful conviction and imprisonment.

            Historically, an individual could not recover damages from the state that wrongly imprisoned him. However, many state legislatures have recently adopted wrongful incarceration laws to help correct this situation. Thirty-two states and the District of Columbia now have such compensation statutes.[ii]

As one state statute puts it, “innocent persons who have been wrongly convicted of crimes and subsequently imprisoned have been uniquely victimized, have distinct problems reentering society, and have difficulty achieving legal redress due to a variety of substantive and technical obstacles in the law . . . such persons should have an available avenue of redress. In light of the particular and substantial horror of being imprisoned for a crime one did not commit . . . persons who can demonstrate that they were wrongfully convicted shall have a claim against the state.“[iii]

The main purpose of these statutes is to provide compensation (money, health insurance, and/or education assistance) to innocent people who prove that they were unjustly convicted and imprisoned. The general guidelines in these statutes is similar across states.

Nebraska’s Claims for Wrongful Conviction and Imprisonment Act

An example of a detailed statute is Nebraska's Claims for Wrongful Conviction and Imprisonment Act.[iv] A person who claims that he was wrongly imprisoned has to prove several elements by clear and convincing evidence to succeed with this claim under the Act.[v] Clear and convincing evidence requires “that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved.”[vi] Clear and convincing evidence is a lower standard than beyond a reasonable doubt, which is used in a criminal trial.

There are four elements that a person must prove. First, he must prove he was “convicted of one or more felony crimes and subsequently sentenced to a term of imprisonment for such felony crime or crimes and has served all or any part of the sentence.”[vii]

Second, the wrongly imprisoned must demonstrate one of the following:

-         he was pardoned;

-         a court vacated the conviction; or

-         the conviction was reversed and remanded for a new trial and no new conviction was obtained.[viii]

Third, the person must prove that he is innocent of the crime(s).[ix]

Finally, he must prove he “did not commit or [have another commit] perjury, fabricate evidence, or otherwise make a false statement to cause or bring about such conviction or the conviction of another . . . except that a guilty plea, a confession, or an admission, coerced by law enforcement and later found to be false, does not constitute bringing about [their] own conviction of such crime[s].”[x]

To prove the first two elements, a person would simply need a certified copy of the conviction; sentencing; and, pardon, vacated conviction, or new trial and resulting innocent verdict documents.

The third element is the hardest to prove. Just showing proof of a “not guilty” verdict is not enough.[xi] To meet this element, he must be able to provide proof of actual innocence. Actual innocence “means that a defendant did not commit the crime for which he or she is charged.”[xii]

Finally, a person needs to show that he did not commit perjury, cause someone else to commit perjury; and, did not willing confess, admit, or enter a guilty plea.

Before a person can proceed with a lawsuit for damages under a wrongful imprisonment statute, there may be a requirement that a lower-level court or a board designated for this purpose conduct a basic review and assessment of the claim.[xiii] This additional procedure allows the court to ensure that only appropriate claims for damages will make their way through the legal system.

The procedural assessment generally involves two preliminary findings. First, the court must determine that the claimant was indeed a "wrongfully imprisoned person" according to the statutory criteria.[xiv] Second, it must find either that the claimant did not commit the offense or that any person did not commit the offense.[xv]

Government Response to Wrongful Conviction and Imprisonment Claim

The government, has numerous options for arguing against such a claim. The most obvious would be to show that innocence of the crime of conviction has not been established.[xvi] Alternatively, the government may also show the person was not innocent of related or lesser-included offenses.[xvii] The government may argue that the person's conviction was reversed on grounds other than innocence, which would exclude recovery under the statute.[xviii] Ohio state courts have held that a guilty plea makes it impossible to have a finding of innocence.[xix] A person who caused their conviction by their own conduct may be disqualified from relief under the wrongful imprisonment statute.[xx] When a person does not meet the statutory requirement of having received a pardon, as well, they will be ineligible under the statute.[xxi]

Determining and Awarding Damages

When an individual successfully establishes a wrongful conviction claim and is entitled to an award of damages, the amount of damages will be determined much like that of other civil cases, though it is acknowledged that "there are limits to what money can do to restore years of lost freedom."[xxii] Damages are typically calculated from the date of conviction to the end of imprisonment, and may also be awarded for subsequent or continuing damage suffered afterwards. In some cases, the courts simply apply the standard formula provided in the statute for compensating a qualifying person.

Each state legislature has established its own guidelines and limitations for assessing damages. In Texas, for example, a claimant pursuing an administrative claim may be awarded a flat $80,000 per year of wrongful imprisonment, while a person pursuing a legal case may be reimbursed for actual lost earnings, medical expenses, and legal fees, and in either case there is a $500,000 cap.[xxiii] In Tennessee, a wrongfully imprisoned innocent person is entitled to up to $1 million, the exact amount to be determined by the Board of Claims “considering all factors the board considers relevant including, but not limited to, the person's physical and mental suffering and loss of earnings.”[xxiv] 

On the other hand, in West Virginia, the court “shall award damages in a sum of money as the court determines will fairly and reasonably compensate the claimant based upon the sufficiency of the claimant's proof at trial.”[xxv]

Compensation may be provided for such damages as lost wages, physical or mental problems caused by the incarceration, and pain and suffering that inevitably arise from fear, lack of privacy, loss of freedom, separation from family, humiliation, interference with personal relationships, and damage to reputation.[xxvi] Beyond these awards, some courts have granted attorney's fees, while others have held that attorney's fees and court costs are not part of the damages in a statutory wrongful imprisonment case.

            If someone is wrongfully convicted and imprisoned, his opportunity to receive compensation will depend on whether the state has a wrongful incarceration law. In states that do not have this law, an individual’s potential for recovery is limited. Even in states that do have one of these laws, there are difficult standards to meet. But, compensation is available in many cases to help correct the life altering wrong of unjust imprisonment.


[iii] Neb. Rev. Stat. § 29-4602.

[iv] Neb. Rev. Stat. § 29-4601.

[v] Neb. Rev. Stat. § 29-4603.

[vi] Tobin v. Flynn & Larsen Implement Co., 369 N.W.2d 96, 100 (Neb. 1985).

[vii] Neb. Rev. Stat. § 29-4603(1).

[viii] Neb. Rev. Stat. § 29-4603(2).

[ix] Neb. Rev. Stat. § 29-4603(3).

[x] Neb. Rev. Stat. § 29-4603(4).

[xi] Hess v. State, 843 N.W.2d 648, 653-654 (Neb. 2014).

[xii] Id.

[xiii] See Tenn. Code Ann. § 9-8-108 (2013); Tex. Civ. Prac. & Rem. Code Ann. § 103.051 (West 2011); Wis. Stat. § 775.05.

[xiv] Wis. Stat. § 775.05(3).

[xv] Wis. Stat. § 775.05(4).

[xvi] State v. McCoy, 742 N.W.2d 593 (Iowa 2007).

[xvii] Gover v. State, 616 N.E.2d 207 (Ohio 1993).

[xviii] Strong v. State, 25 Ill. Ct. Cl. 231 (Ill. Ct. Cl. 1965).

[xix] Ruff v. State, 1995 WL 546896 (Ohio Ct. App. 10th Dist. 1995).

[xx] Williams v. State, 661 N.E.2d 1381 (N.Y. Ct. App. 1995).

[xxi] Kelly v. State, 36 Ill. Ct. Cl. 187 (Ill. Ct. Cl. 1983).

[xxii] State v. Oakley, 227 S.W.3d 58 (Tex. 2007).

[xxiii] Tex. Civ. Prac. & Rem. Code Ann. § 103.052 (West 2011).

[xxiv] Tenn. Code Ann. § 9-8-108(a)(7)(A) (2013).

[xxv] W. Va. Code § 14-2-13a (2014).

[xxvi] In re Blair, 408 S.W.3d 843 (Tex. 2013).