Pennsylvania’s wrongful conviction bill could leave many behind

Most states have a system for compensating people after they’ve been exonerated. 

Pennsylvania does not, despite state lawmakers steadily introducing bills to create one for at least the past two decades.  

That would change under identical wrongful conviction compensation bills currently in each chamber of the state legislature. But the proposals are a mixed bag, according to some proponents, who believe few would qualify for payment.

Listen to Emily’s audio feature here:

For now, exonerees in the commonwealth have to hire a lawyer and sue to try to get monetary damages for being imprisoned for something they didn’t do. 

Even then, winning these cases isn’t straightforward, according to attorney Jeffrey Deskovic. 

“The overwhelming majority of exonerees here in Pennsylvania are uncompensated because the facts of their case didn’t lend [themselves] to being able to prove malicious misconduct,” said Deskovic, who specializes in these cases after doing 15 years himself for a crime he did not commit. “It’s simply that they were wrongfully imprisoned.”

Also, lawsuits often take years and the outcome’s uncertain, noted Bijan Taheri, executive director of Youth For Innocence, a consortium of high school and undergraduate volunteers who do case intake for lawyers. 

“ That’s time people who are just getting out of prison, who have no resources, don’t have,” Taheri says. “It’s really important that … these people can be compensated and have those services right out of the gate instead of being forced to wait three, four, five years and eventually, maybe, get compensated.”

Taheri, of Philadelphia, and Deskovic, of New York, spoke at a gathering on the Capitol steps to try to raise awareness of the legislation. New York-based national innocence nonprofit It Could Happen To You organized the event.

Thirty-eight states and Washington, D.C., have wrongful conviction compensation statutes.

Pennsylvania is the most populous of the remaining states without one, according to Professor Jeffrey Gutman, director of the Public Justice Advocacy Clinic at The George Washington University Law School.

The fine print

Most states don’t have a dedicated revenue stream or funding source for wrongful conviction compensation. The proposal in Pennsylvania also does not identify one. 

But the way the legislation reads currently would limit who qualifies, some advocates say. 

“No one’s going to get any money out of it,” said Adele Bernhard, a professor at New York Law School who’s focused her career on wrongful incarceration. 

To qualify, someone’s conviction would have to have been reversed based on “actual innocence,” the legislation states.

During the proposed compensation application process, the court would need to be “satisfied of the individual’s actual innocence,” to ultimately approve payment.

That phrase – actual innocence – stood out to both Bernhard, who first compiled a compensation statute policy matrix in 1999, and Gutman, who now keeps it updated for the National Registry of Exonerations. 

“ That’s bad language. Nobody will get their award,” Bernhard said. “It’ll be a stumbling block.” 

That’s because judges tend to overturn convictions when there’s new evidence – a witness, new information about the confession or identification, etc. – that they believe, had a jury heard it, would’ve resulted in an acquittal instead, she said. 

“DNA is obviously a slam dunk. And it depends what else you have,” Bernhard said. “Whatever it is, is that new information sufficient for a court to say you’re actually innocent? They are not generally going to say that. They’re going to hedge their bets a bit and say, ‘No. I think a jury would’ve acquitted if they’d heard this information about the police officer.’”

Five states require a prior finding of actual innocence to qualify for wrongful conviction compensation. 

Pennsylvania’s law could say something like “the conviction was overturned and the indictment vacated on grounds consistent with innocence,” she said. 

“That gets rid of the bogus claims where somebody’s had their case overturned based on some sort of a technicality and then dismissed because they can’t find the witness and it has absolutely nothing to do with innocence,” she said. 

The  measure calls for a process that’s as informal as possible. But people likely will need an attorney to navigate it, according Bernhard, especially because prosecutors on the original case would have a month to object. 

Petitioners would have 15 days to respond to any objections from law enforcement or a flat out denial, according to the legislation. 

Those relatively tight timelines could help address delays that can be an issue in some other states, Bernhard said. 

Some components match what’s in place in other states, according to Gutman.

The bill also calls for: 

• Paying exonerees between $75,000 per year of wrongful incarceration – or $100,000 if the person was on death row – plus $50,000 per year on probation or parole.
• Reimbursements for related expenses such as restitution and medical care, in addition to no more than $75,000 in legal fees (calculated at up to 10 percent of the payout)
• A six-year window to file for payment starting upon release from prison or a decision on a compensation application, whichever is later.
• Notifying potentially eligible people by the Department of Human Services and Board of Pardons. 

“The provisions about non-monetary services are quite strong, but they don’t help people who don’t qualify,” Gutman said via email. 

Sponsor Sen. Vincent Hughes (D-Philadelphia/Montgomery) said lawmakers have been working to find language that gets enough support to move the bill. 

“We’re going to continue to try to be creative,” Hughes said. “We’re gonna try to answer people’s concerns or questions. The objective remains the same. But maybe we have to utilize different language to get it all the way home.”

A spokesperson for cosponsor Sen. Camera Bartolotta (R-Washington) said her office didn’t participate in negotiations about the language in the bill. 

 The impact of stigma 

Some advocates said they believe an application-based system would mean more predictable costs – potentially lower, even.

Adequate support would ultimately help exonerees get back on their feet and contribute to society, they noted.

Deskovic said he experienced the difference first-hand. The New Yorker said his home state didn’t have wrongful conviction compensation when he was exonerated and released, let alone re-entry services. 

“I was always passed over for gainful employment,” he said. “There was a stigma around whether I was out on a technicality or because I was innocent.”

Deskovic struggled, as many exonerees do, with catching up to new technology during his prison sentence, in addition to post-traumatic stress and finding stable housing. 

Five years later, he secured compensation through New York’s compensation statute. 

“Suddenly, I didn’t have the mental strain,” Deskovic says. “I was able to pay my bills. I was able to go to college, get a bachelor’s and master’s and a law degree, and be a lawyer, and have a nonprofit organization. I know many exonerees in other states that have compensation that were able to put their lives back together again.”

Yeidja Bostick, of Philadelphia, is still waiting for that reprieve.

“It’s really come to a point that this compensation is like a matter of life and death,” Bostick said. “All those years I felt like I could have been financially okay if I had gainful employment. But really no one wants to hire you.”

Bostick’s conviction for vehicular homicide was overturned at the end of 1993. 

She said she didn’t receive support for finding a job, managing post-traumatic stress or anything else after her exoneration and release from prison. She said she’s now working as a courier driver and getting by, but still struggling with debt accumulated over years of struggling to find stability and gainful employment. 

“There’s nothing that we can do to get that time back, but going forward, it’s time to right the wrongs of the injustice,” Bostick said. “Just make it happen.”

It’s not just prison itself, supporters pointed out: the trauma of the experience, the toll it takes on physical health and the ensuing loss of time, educational opportunities, career progression and financial stability have devastating longterm consequences. 

Stigma and lack of specific support exacerbate all of that, as Deskovic referenced. 

Researchers have documented discrimination against exonerees in multiple arenas including housing and employment. 

A recent study added to the canon with an audit of therapists. 

Basically, the team emailed therapists with nearly identical treatment queries. They described symptoms verbatim. The change came with just a few words: the writer identified as either a former first responder, someone on parole or someone who’d been exonerated.

Exonerees had the lowest response rates, with nearly half of emails ignored. 

One possible explanation, according to Towson University Professor Jeff Kukucka, is that people simply don’t believe the claims of innocence (despite these being upheld in court). 

Parolees got the most referrals, with about 40 percent of respondents suggesting another provider. 

To Kukucka, a lead researcher on the study, that supports a better explanation: a systemic blind spot when it comes to exonerees. So, the therapists didn’t know how to help or what to suggest as an alternative. 

“There are tons of agencies whose mission is to help people transition from life in prison and criminal offenses to a productive crime-free life after prison, that are geared toward giving people a second chance,” Kukucka said. “We don’t yet have nearly the same level of systemic support for wrongly incarcerated people.” 

Fifteen of the 39 states with compensation statutes guarantee mental health support for people with an overturned conviction. 

“ There’s an assumption that’s implicit in a lot of these statutes that when a wrongly incarcerated person leaves prison and comes back into society, that if we give them some money, they’ll be able to figure it out,” he said.

Political progress? 

Two years ago in Pennsylvania, a wrongful conviction compensation bill passed out the House Judiciary Committee on a party line vote before stalling for the year or so remaining in that session. That’s the most progress any legislation on the issue’s made. 

State Rep. Regina Young (D-Philadelphia/Delaware), the House measure’s sponsor now and then, says she’s optimistic. 

 ”The last time I spoke with the judiciary leader on the House Republican side, they were considering it,” Young said Tuesday.

That would be State Rep. Rob Kauffman (R-Chambersburg). 

As the GOP minority House Judiciary chairman, Kauffman expressed concerns last session during the committee’s discussion that included extending eligibility to people who’d been pardoned and pleaded no contest. 

The current version of the bill states that people can qualify with a pardon or if they pleaded no contest during their original case. 

Kauffman didn’t respond to interview requests for this story. Nor did the Pennsylvania District Attorneys Association. 

Those who’d be ineligible include someone incarcerated for a different conviction that wasn’t overturned. 

“It’s hard to imagine a greater injustice than losing decades behind bars for a crime you did not commit,” Young said during her remarks last week in Harrisburg. “You receive no compensation for your time and minimal assistance with the transition back to society without a clear understanding of the world you’re walking back into.”

Young’s office did not respond to requests for comment after the event about the bill language. Organizers hope to meet with her “to tighten up the bill”, said Bill Bastuk, who heads advocacy organization It Could Happen to You.