« Law students and law deans | Main | More Adverse Possession in the News »

Sunday, November 25, 2007

Wrongful Convictions, Unconstitutional Convictions, and "A Long Road Back"

The Sunday New York Times reports on its broad study of exonerated prisoners and their transition back into society. The American Prospect discussed this issue, with similar conclusions and anecdotes, back in July. Devan Desai at CoOp comments on The Times story's revelation that many individuals continue to be stigmatized by the undone conviction and shadowed by suspicion that, although formally exonerated, they still had done something wrong. Northwestern Law School's Center on Wrongful Convictions has more on this problem.

I am interested in the problems of compensation, or lack thereof, highlighted by these stories. According to the Innocence Project, only 22 states and the District of Columbia, along with the United States, provide for state compensation for time wrongfully spent in prison, usually not more than $ 50,000 per year of wrongful incarceration (the amount provided for under federal law) and far less in many states. The Times also reports on considerable delays in obtaining compensation. Moreover, all the statutes require, in some form, that the individual show actual innocence of the crime or a pardon--something that shows that, in the eyes of the law, this individual did not commit the unlawful act in question. The laws do nothing for what we might call the "unconstitutionally convicted"--those whose convictions were undermined by some constitutional infirmity, but who were not necessarily found to be, or cannot necessarily prove, actual innocence of the conduct or offense.

Given the absence of or problems with these compensation laws, both categories of unjustly convicted are pushed onto the same path--civil rights actions for damages under § 1983. But such actions are extremely difficult to win for a number of reasons.

First, the truly responsible officer--the prosecutor--has absolute immunity from damages for "prosecutorial functions" (a fact the Duke lacrosse players are going to learn), covering the decision to pursue charges and everything that occurs within the judicial process--regardless of how deliberate or obviously unconstitutional the conduct.

Second, to the extent police perjury was one cause of the conviction (as often is the case), officers have absolute witness immunity for even knowingly perjured testimony.

Third, pre-trial misconduct by any government officials will be subject to a defense of qualified immunity, under which liability attaches only if the legal right violated was not clearly established within a relatively similar factual context, such that a reasonable officer would have known that his conduct violated the Constitution. This covers things such as coercive detentions and interrogations and forced confessions; unreasonable searches and arrests; forged evidence; witness shopping; and false statements to the press.

Fourth, quirks of § 1983 doctrine involving statutes of limitations and the timing of claims at least throw some procedural hurdles in a person's way, complicating matters for individuals often bringing the initial suit pro se.

Finally, even if the plaintiff can prove some non-immune pre-trial constitutional violation, he may have a problem establishing the link between that misconduct and the resulting conviction/incarceration so as to recover for the time unjustly spent in prison. Which, of course, is the real goal of any lawsuit by someone whose conviction has been overturned. Absent the link to time spent in prison, the right itself may not be worth a substantial amount.

This is the very broad outline of a problem I plan to analyze in-depth in a future article (one of several that has been on my research agenda for at least three years). Later this week, I might discuss some of the solutions I might propose, if and when I finally write this piece. And maybe the recent media coverage on the larger issue tells me it is time to start working on that.

Posted by Howard Wasserman on November 25, 2007 at 11:40 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Wrongful Convictions, Unconstitutional Convictions, and "A Long Road Back":


Well, you might call them "unconstitutionally convicted," but if so, then you are fudging the difference between legal innocence and factual innocence. The factually innocent undoubtedly deserve compensation. The legally innocent are not so clear, since they might actually be guilty! And then there's the infamous Central Park rape case, where the defense of the "exonerated" was that they were attacking people elswhere in the park at the time. It would be a mistake, I think, to design a compensation system that treats them the same way as we treat the factually innocent.

Posted by: Not Barry | Nov 26, 2007 7:07:20 PM

Well, it so happens that, given the unavailability or deficiency of compensation systems for the wrongfully convicted (the "factually innocent" in your words), both classes are forced into the § 1983 remedial system. More importantly, I wonder how sharp the division between those concepts really is. In the absence of DNA evidence showing that someone else was responsible for the crime or an executive pardon, how can someone prove factual innocence? If innocence is based on the asbence of evidence to connect them with the crime, does that make us any more certain of factual innocence then where the absence of evidence is a result of the evidence having been excluded because of constitutional defects in the gathering or because the evidence was perjured or fabricated?

And as for the Central Park jogger case, why should we not treat the five boys there as "factually innocent" or as factually innocent as any other exonerated individuals. They were, in fact, factually innocent of the crime for which they were convicted, at least as far as we can tell. Their convictions were not overturned because of constitutional defects in the evidence gathering; they were overturned because evidence pointed to a different, unconnected perpetrator. The fact that they might appear as bad kids who were doing bad things does not make them any less innocent.

Posted by: Howard Wasserman | Nov 27, 2007 12:03:28 AM

"The fact that they might appear as bad kids who were doing bad things does not make them any less innocent."

What is always so fascinating about defense-oriented scholars is their inability to acknowlege any bad behavior by defendants. They did not just "appear" to be "doing bad things." That is precisely what they were doing -- terrorizing and robbing people elsewhere in the park. They said so. And the NYT published accounts from some of the victims. But gee, I didn't see any law professors worrying about whether those victims would be compensated -- or, for that matter, how well they are adjusting to having been attacked and recieved no justice from the system.

Apparently, you find the Central Park hoods as worthy of compensation as the actually innocent person. I will be fascinated to hear your definition of worthiness and the reasons why it doesn't matter whether one actually WAS breaking the law and injuring other people.

Posted by: Not Barry | Nov 27, 2007 10:02:40 AM

I did not say they appeared to be doing bad things; I said they appeared to be bad kids--I am not going to say for sure because I do not know them and do want to characterize. There is no question they were doing bad things. But the bad things they were doing were **NOT** the things for which they were charged, convicted, and imprisoned. They were punished for an act they did not, in fact, commit. So they are actually innocent persons with respect to the charge of rape/assault/attempted murder/whatever of the jogger. For purposes of compensation, that is all that should matter.

I do not quite understand why you believe these kids are somehow different than the "actually innocent person." Do you mean that someone who is punished for Act # 1, even though they did not commit that act, is not worthy of exoneration or compensation if he, in fact, committed Acts ## 2 and 3, even if he was not punished for those acts? That is troubling to me and not just because I am a "defense-oriented scholar" (I am not a criminal law scholar and I am not sure I would be that defense-oriented if I were). The law punishes the act, not the person or the other acts that a person also committed--thus the prohibition on much character evidence. And many of the people who have been wrongfully convicted had prior criminal records or had engaged in other unlawful activities--that is partly what draws the police to them in the first place. So are they not worthy of compensation?

Posted by: Howard Wasserman | Nov 27, 2007 10:56:24 AM

Judge Finds DA Investigator Innocent
EXCLUSIVE: Judge Finds DA Investigator Innocent
Exclusively from kesq.com

A judge found major problems in the way the Riverside County District Attorney's office investigated a high-profile case. The same judge gave a rare "finding of innocence" to a former DA Investigator once accused of beating his wife.

This finding could impact cases in Desert Hot Springs and ongoing FBI investigations.
Former DA investigator Luis Bolanos has reason to be relieved now that a Superior Court judge finds there was "no credible evidence" against him and that he is "factually innocent" after a 2005 arrest for allegedly beating his wife and lying under oath.

The Riverside County District Attorney's office is singled out for having "no reasonable cause" to believe the charges against Bolanos were ever true. And, the State Attorney General's office is targeted by the judge for "rubber stamping" an "incomplete investigation."

"I'd like to get my 3 years back, my family's 3 years back. I'd like to give my children the quality of life that we had, prior to this nightmare starting," said Bolanos. "I'd like to be able to get all that back. I would like the individuals that caused this to have to be held accountable for what they did. I just think it's time. It's just amazing how they've been able to hide amongst themselves and protect each other at whatever cost."

Before apparently wiping out his entire family in a 2005 massacre, DA Investigator David McGowan was Bolanos' former partner. Bolanos filed an affadvit stating that their bosses illegally pressured McGowan to change reports in the case involving former Desert Hot Springs Police Officer David Gallardo.

Gallardo says he lost his job in an attempt to cover up major problems of corruption and sexual crimes inside the DHS Police force. The DA's office went after Bolanos in 2005, arresting and firing him.

Here's the rest of the KESQ.coms story. Video included.

See AOL's top rated recipes and easy ways to stay in shape for winter.

See AOL's top rated recipes and easy ways to stay in shape for winter.

Posted by: Luis | Dec 24, 2007 10:26:31 PM

Sources close to the original David McGowan murder-suicide investigation tell NewsChannel 3 that FBI agents have questioned them.

Agents are looking into alleged discrepancies with the official story from the Riverside County District Attorney's office.

They are also looking into the stresses McGowan faced at work and testimony he was being allegedly forced by his bosses to change a report.

But whatever caused David McGowan to kill his family and himself in 2005 has always been a mystery.

Investigators said, then, no suicide note was found but only a reference to a popular song.

McGowan's former partner Luis Bolanos is now filing federal lawsuit against the DA's office he and McGowan used to work for.

He says he was fired because he knew McGowan was being pressured by chief investigator Clay Hodson who left his position as our investigation began to change his findings on an investigation surrounding four officers with the Desert Hot Springs Police Department.

That case relied on the testimony of Officer Jacques Million, who was caught on videotape molesting a 14-year-old girl according to former DHS Chief Roy Hill and others on the force.

"I believe the FBI is taking this investigation very seriously," Bolanos says. "Especially on the depth of the individuals that they've contacted. They're asking all the right people all the right questions and it's coming out, it's coming out."

The FBI is now interviewing people connected to the David McGowan murder-suicide and people surrounding the alleged sex crimes from former Desert Hot Springs officers that were at the center of McGowan's last case.

The District Attorney's office has always said McGowan showed no problems at work and that he went on vacation before the murder-suicide.

But pictures uncovered by NewsChannel 3 of McGowan's workspace at the DA's office shows he cleared his pictures and other personal mementos days before.

Fellow investigators tell us McGowan confronted his bosses about intimidation to change his report findings before he cleared his things.

Now one of McGowan's closest friends is taking the offensive against the DA's office.

"We are requesting a jury trial and we were granted the opportunity to have this heard in Los Angeles County versus Riverside County which I think puts us on a more level playing field.

District Attorney's office spokesperson Ingrid Wyatt says that they cannot comment on Bolano's federal lawsuit and that they are fully cooperating with the FBI's investigations.

Posted by: Patty | Sep 25, 2008 1:33:28 PM

Post a comment