As of April 1, 2022, the National Registry of Exonerations (NRE) reported 3,050 exonerations in the U.S. since 1989. These cases represent 26,700 lost years in prison because of wrongful convictions, many of which were obtained through intentional prosecutorial and police misconduct.
Illinois and Texas Leads U.S. in Wrongful Convictions
The NRE exoneration map shows Illinois leading the nation with 425 exonerations and Texas closely behind on their heals at 400. The NRE also reports that 197 of these exonerees served 25 or more years, with Texas having 16 exonerees in that horrific category.
These figures do not inspire much confidence in the nation’s criminal justice system, with slightly more than 2 million people housed in federal, state, and local penal/jail facilities. It is estimated that anywhere from 46,000 to 230,000 people now incarcerated in U.S. correctional facilities are innocent.
Based on the current NRE exoneration analysis, roughly 53 percent of these innocent individuals are black, 33 percent are white, and 12 percent are Hispanic. Those figures accurately reflect the systemic racism rooted in how justice is dispensed in this country.
But what happens to the wrongly convicted after they are released from prison?
Over the last five decades, Penal incarceration has become a gigantic “prison industrial complex.” There are tremendous profits from the “mass incarceration” by both federal and state governments. The demand to maintain and increase these profits made by tens of thousands of business entities from mass incarceration has created a system where wrongful convictions are an inevitable byproduct of “the costs of doing business.
This incurably corrupt justice system offers the wrongly convicted just two remedies for compensating the everlasting harm inflicted upon them by those running the system. Some states allow compensation through statutory schemes that require the exoneree to prove actual innocence. If there is no state mechanism, the exoneree is left with civil litigation, mainly under the federal civil rights statute, which requires proof of deliberately caused governmental misconduct, which is usually impossible to overcome.
Thirty-five states and the federal government provide compensation to the wrongly convicted in varying amounts and under various circumstances.
Compensation for Wrongfully Convicted Inadequate
For example, some states allow a wrongly convicted person sent to death row to receive a higher payout than a person wrongly convicted and sent to prison with a 20-year sentence. The problem inherent in these compensation schemes is that they have either a protracted application process or convoluted standards an individual must meet to get a payout (including signed waivers not to pursue civil litigation). At the end of the process, the amount of compensation awarded is nowhere comparable to the harm inflicted.
Most wrongly convicted individuals will forego state-sanctioned compensation remedies and pursue civil remedies in court, where the damage awards can be considerably higher.
For example, a Chicago federal jury in October 2021 handed down a $25 million damage award to two former city detectives who were wrongly convicted and spent 23 years in prison because of those wrongful convictions.
Chicago has become known as “the wrongful conviction capital of America.” Between 2018 and 2020, the city paid out nearly $200 million in civil damages in police misconduct cases alone—and in just one wrongful conviction case, the city paid almost $50 million to four men wrongfully convicted because of police misconduct.
Wrongful conviction and police misconduct cases—often interrelated—have become a money-making windfall not only for the attorneys representing the exonerees but also venture capitalists who see an opportunity to extract profit from the human suffering in wrongful convictions.
As described in Roy Strom’s February 22. 2022 report for Bloomberg Law, commercial funding firms are offering wrongfully convicted persons—most of whom have little or no financial means—upfront payments for a percentage of any eventual civil litigation judgment.
The scheme works something like this: funding firms advance a wrongfully convicted person $100,000 with a contractual agreement that they repay the $100,000 plus 8 percent interest on any amount exceeding the $100,000 advance, as stated in the Bloomberg Law piece.
These funders say they are providing a social justice “public service” to people victimized by “miscarriages of justice”—and in some cases, they are.
As Daniel Digiamo, head of the finance company Baker Street Capital, told Bloomberg Law: “We love to fund these cases. We believe in the plaintiffs. We believe in the cases. And we believe in what the funding allows them to do.”
These funding firms exist because, as Roy Strom noted, the average payout through state compensation programs is somewhere around $50,000 for each wrongful year imprisoned. Just over half of the exonerees will pursue state compensation because they know there is a 1 in 4 chance that compensation will be denied.
Commercial funding will take care of their financial needs immediately after release from prison with a reasonable expectation that a jury will award them a fairer payout than the one offered by the state.
Bottom line is this: civil litigation associated with governmental misconduct in pursuit of mass incarceration policies is now a $2 billion industry within the roughly $200 billion prison industrial complex—and all of it subsidized by taxpayers.
There is no room for either “reform” or “justice” in these billions spent—just the cost of doing business in our massive prison industrial complex.