Thursday, February 27, 2014

Compensating Exonerees: US v. UK


One of the many issues arising from the wrongful convictions/innocence movement is the standard for compensating individuals who have been acquitted or whose convictions have been vacated and whose charges have been dismissed.  In the United States, the focus of the innocence movement has been on correcting factually erroneous convictions through the admission of post-conviction newly discovered evidence.  In the United Kingdom (here, England and Wales), however, the focus of the movement has been on correcting miscarriages of justice, a far broader term than erroneous convictions, that includes unfair or illegal as well as factually erroneous convictions.    Indeed, the remit of the Criminal Cases Review Commission, the independent body formed to examine challenged convictions, requires that they determine whether a miscarriage of justice has occurred. 

It is not surprising that both jurisdictions have had to face the issue of what sort of post-conviction showing warrants monetary compensation to someone who has been exonerated.   Clearly, neither jurisdiction awards damages simply because someone has been acquitted by a jury.  Similarly, neither jurisdiction awards damages simply because an appellate court quashes a conviction.  Whether under the UK’s appellate standard of “unsafe,” or the US’s appellate standards of prejudicial error or against the weight of the evidence, more is required.  Indeed, in the case of Lorraine Allen, whose conviction for killing her instant son was quashed by the English court of appeal based on newly discovered medical evidence, the European Court of Human rights held that article 6.2 of the European Conviction on human rights did not guarantee compensation based simply on a finding that the conviction was unsafe.

Although the showing required for compensation of exonerees in the United States varies state by state, generally speaking, the exoneree must have been convicted of a felony, served time in prison, had the conviction reversed on a ground consistent with innocence, had the indictment dismissed or been acquitted after the reversal, AND be able to show by clear and convincing evidence that the exoneree is, in fact, innocent.   Although extremely demanding, this standard is at least consistent with the US focus on correcting factually erroneous convictions.  The UK parliament is now grappling with defining the showing required for compensation for exonerees.  The government's proposed amendment to section 133 of the Criminal Justice Act 1988 would permit compensation for a miscarriage of justice “if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence.”  This standard is even more demanding than the US standard.

It goes without saying that proving “innocence” post-conviction, absent conclusive DNA test results,  is extremely difficult, both practically and definitionally.  This is true in the United States and in England and Wales.  But so far, Parliament and the English court of appeal have been willing to grant relatively broad post-conviction relief to correct what they view as a miscarriage of justice.  The proposed extremely narrow definition of compensable harm is inconsistent with this position.  No doubt it reflects the economic difficulty today.  Hopefully, however, if adopted, it will not have a negative impact on the UK’s willingness to grant non-monetary, judicial relief in miscarriage of justice cases.

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