It is without doubt that since the beginning of cultural justice systems, there have been many people convicted of crimes that were either not involved with the offense or not involved to the extent to which he or she was convicted. While a lot has been done and put into place to lessen the number of wrongful convictions, wrongful convictions still occur.
Now that academia, news sources and government offices are openly acknowledging the impact of wrongful convictions on American society, persons wrongfully imprisoned are being released. However, release after exoneration leads to another issue: what do the wrongfully convicted do after exoneration? Many times, exonerees have no support when coming out of imprisonment, whether that be monetary, housing, employment, mental health, or something else. Several states have different rules that are meant to assist exonerees with their transition back into normal society. These state rules come with their own strengths and weaknesses. Though we have come far, there is still a need for a process that adequately assists the complex needs of exonerees when coming out of imprisonment, specifically an exoneree’s mental health needs.
A closer look at wrongful convictions was kicked off in 1913 by Yale law professor, Edwin Borchard. Borchard published an article discussing how European nations addressed the issue of finding and remedying wrongful convictions.1 In many ways Borchard’s article opened the eyes of American people to the grave injustice of erroneous convictions. However, real change did not occur immediately. For the next fifty years, meaningful research on wrongful convictions was quite infrequent. Usually a piece of literature focusing on the subject was published once every ten years or so.
The major turning point that caused wrongful convictions to become a meaningful topic of detailed research and reform was the onset of DNA research and testing, which commenced in the late 1990s. This DNA science meant that law enforcement officials could now test physical and biological evidence and compare that to the physical and biological evidence of the suspect. The revolution of DNA testing led to advocacy for the wrongfully convicted; this advocacy began largely with The Innocence Project.
According to the Innocence Project, thirty-five states and the District of Columbia currently have some form of legislation that focuses on exonerees' need for compensation.2 A lot of the legislation in these states offer only basic compensation. But exonerees often have complex needs for monetary assistance and therefore these states need compensation rules that go into more depth when addressing those needs.
For example, following their release from prison, exonerees have three basic avenues for recovering financial compensation: filing a civil rights lawsuit, receiving special legislation, or receiving relief under a statute. Out of these choices, statutory compensation is the most likely to have an outcome in the exoneree’s favor. Civil rights lawsuits have multiple barriers that make recovery difficult and special legislation has even more complex barriers than civil rights lawsuits. Understanding the difficulties with, and the typically inadequate remedies afforded by, civil rights lawsuits and special legislation provides the primary reasons for the necessity of structured, holistic statutory compensation schemes.3
With civil rights lawsuits, exonerees will generally bring an action against the police officers and the prosecutor involved in the person’s wrongful conviction.4 Even if the exoneree can demonstrate that he or she was deprived of a constitutional right by police officers or prosecutors, the exoneree still has to get past the barriers of qualified and absolute immunity.5 Regarding police officers, once a warrant is obtained with a showing of probable cause, the police officer possesses qualified immunity from liability.6 Lawsuits against prosecutors have an even larger barrier to overcome, absolute immunity. It is well settled that at common law, if a prosecutor is acting within his prosecutorial powers, he is absolutely immune.7 Therefore, exonerees have a very low chance of being awarded compensation from a civil rights lawsuit.
In a special legislation situation, an exoneree seeks to be awarded compensation through a special legislation that would affect a particular group of people, that group being the exoneree. To receive this type of legislation, the exoneree must petition his or her state legislature to pass a private bill that would distribute money from the state treasury directly to the individual exoneree to remedy him or her for the wrongful conviction.8 Special legislation is especially difficult to receive because exonerees typically do not have the political influence to successfully push a private bill through a state legislature and, even worse, some state constitutions prohibit special legislation.
Another hurdle that exonerees must face is the short time frames within which they must apply for compensation under some state statutes. One example of an arguably fair time frame is Tennessee’s statute of limitations. Tennessee gives exonerees a period of one year from the date of exoneration to apply for compensation.9 However, states like Florida give exonerees only ninety days from the date of the exoneration to petition for compensation.10 Short time frames provide exonerees with little opportunity to process their release and take steps towards receiving compensation. Additionally, exonerees may be hesitant to swiftly re-enter a justice system that has already failed them.
Imprisonment comes with the loss of freedom, privacy, autonomy and much more. Some studies vary regarding the psychological effects that prison has on the incarcerated. Notwithstanding that, there is a large body of works that have found that the psychological effect of incarceration is substantial, even with persons who experience a relatively short-term confinement.11 It is common knowledge that imprisonment has powerful detrimental effects. Prison rules tend to create a dependence on institutional structures. Further, to survive in prison, some inmates are forced to use aggression to avoid being a victim of another inmate’s aggression. Other inmates respond by becoming isolated and withdrawn, often exhibiting behavior resembling clinical depression. Some researchers even believe that incarceration causes a form of post-traumatic stress disorder.12
Researchers are beginning to consider how wrongful imprisonment can intensify the typical effects of imprisonment. Some evidence suggests that wrongfully imprisoned persons experience rage and institutional mistrust. Further, the abruptness with which exonerees are released creates further difficulties. For example, inmates that are not wrongfully convicted may expect their release date and are provided with the services to prepare for it.13 On the other hand, exonerees may be released suddenly, after years of imprisonment, with no support or preparation.14
Additionally, literature states that persons in prison experience mental deterioration and apathy, endure personality changes, and become uncertain about their identities.15 Several studies have found that some former prisoners may be diagnosed with post-traumatic stress disorders, as well as other psychiatric disorders, such as panic attacks, depression, paranoia, social withdrawal, depression, anxiety, lethargy, a diminished sense of self-worth and value and anger issues. Other researchers have found that the experience creates a sense of helplessness, greater dependence, and introversion and may impair one’s decision-making ability.16 This psychological suffering is also increased by witnessing or experiencing violence, a common experience during incarceration. Some researchers claim the psychological effects developed during confinement are highly likely to extend for some time after an exoneree’s release.17 Moreover, exonerees can find social adjustment and social integration difficult when going back into the world outside of prison.18
Studies conducted in the last decade have shown the harm that results from wrongful convictions. For example, one study interviewed exonerees of capital crimes and found that these exonerees reported experiences that were similar to “life-threatening traumas.”19 Another study also interviewed exonerees of capital crimes and found that the exonerees may have significant psychiatric and adjustment difficulties of the kind described in other groups of people who have suffered chronic psychological trauma. An additional study of exonerees of capital crimes found results similar to the two above.20 The study found that a substantial number of exonerees were suffering from clinical anxiety, depression, posttraumatic stress disorder, or a combination of the three.21 These studies of samples of individuals released after wrongful conviction demonstrate the psychological trauma experienced by exonerees and their need for real help.
Mental health challenges are exacerbated in exonerees because they have to deal with the typical issues that come with being imprisoned on top of the fact that the justice system has wronged them so greatly. Many exonerees come out of prison with mental health issues, but they receive no assistance for these mental health issues. Most states do not consider the mental state of exonerees when enacting legislation addressing exoneree assistance. Money alone is not what makes exonerees whole after wrongful imprisonment. The point is to reintegrate the person back into society so that he or she can successfully function as a normal citizen. Successful reintegration cannot be addressed solely with monetary assistance; mental health assistance must be present.
Some states are attempting to fix their current compensation rules, such as Texas, which is addressing monetary compensation for exonerees through the Tim Cole Act.22 The Tim Cole Act was named after a man who was wrongfully convicted of rape in Texas in 1986.23 Unfortunately, Cole ended up dying in prison before he was exonerated in 2009.24 The Tim Cole case was a wakeup call for Texas, and the state decided that it needed to better compensate exonerees and their families who had suffered because of the criminal justice system. Before the Tim Cole Act, Texas had exoneree compensation available, but the state has since moved to a more holistic approach to the exoneree compensation structure with the Tim Cole Act. Texas serves as a good example of the shift in thinking from a basic approach to the holistic approach that other states should consider moving toward.
The Tim Cole Act offers exonerees a broad range of services after exoneration. Under the Act, exonerees are entitled to $80,000 for every year that the person was wrongfully imprisoned.25 The Act also offers various types of services for exonerees. The process begins with the exoneree being assigned a case manager, who helps the exoneree select individualized services and assists the exoneree in successfully reintegrating into society.26 Under the Act, exonerees have access to medical and dental services, which includes assistance in completing the documents required for applications to federal entitlement programs.27 Exonerees are also entitled to mental health treatment and services. These services are provided as long as the exoneree needs the assistance.28
A Texas case decided in 2013 clarified the purpose of the Tim Cole Act. In re Blair, Texas courts addressed whether the Tim Cole Act required payments to a felon who was, at that time, currently incarcerated for an offense that occurred before he became eligible for compensation due to a wrongful conviction.29 The Texas Supreme Court concluded the Act did not require compensation in that situation and therefore denied relief to the felon.30 Although the facts regarding the timing of the convictions’ adjudications led to the court’s denial of compensation in this case, the court clarified the intent of the Act.31 The court explained that compensation is based on reparation for the wrong done in the State’s name.32 This means that a dead exoneree would still be eligible for compensation.33 This case gives background and context as to why the Texas legislature decided to push this compensation statute. The court emphasized that the compensation required by the Act is different from the support that provides for reintegration into society.34 The court opined that the Act is better viewed as reparation for the wrong done in the State's name instead of viewed solely as a way to help exonerees reintegrate.35
This holistic approach seems to be the best method at this time for addressing exoneree compensation. The monetary structure that accounts for the number of years equating to the amount of money an exoneree receives seems to be the fairest structure so far when determining how much money one should receive. Importantly, the Tim Cole Act acknowledges that “compensation” is not limited to money. Texas has recognized that exonerees need monetary assistance as well as services to assist them after wrongful imprisonment. Texas does a remarkable job with its attempt to remedy exoneree issues outside of monetary compensation.
In addition to monetary compensation, the Tim Cole Act offers three types of non-monetary compensation or reentry and reintegration services.36 An exoneree is entitled to receive the benefits of any program that is supposed to assist with entering back into society.37 Under the Texas statute, “[t]he office shall develop a plan to use existing case management functions to assist wrongfully imprisoned persons ... in ... obtaining mental health treatment and related support services through the public mental health system for as long as the wrongfully imprisoned person requires assistance.”38 Further, exonerees have access to medical and dental services. This includes assistance in completing the documents required for application to federal entitlement programs. Exonerees in Texas are entitled to mental health treatment and services and these services are provided as long as the exoneree needs the assistance.39
It is commendable that Texas is attempting to address exoneree’s possible mental health issues. Assigning an exoneree a case manager to check in on the exoneree and handle his or her specific case sounds like an effective process. However, the statute does not go into detail beyond stating that an exoneree is entitled to a case manager and is entitled to some services, and there are no cases that discuss the compensation statute aside from In re Blair discussed above. More detail and guidance may be needed for the process; however, that will likely be remedied as the state courts deal with these cases.
Illinois also has a statute that addresses re-entry services for the wrongfully imprisoned. The statute merely states that there shall be a “re-entry services program to assist persons wrongfully imprisoned, ... in obtaining mental health services, including services for post-traumatic stress, at an agreed-upon mental health facility at no charge.”40
Some positive aspects of this Illinois statute are the state’s recognition that exonerees need help obtaining mental health services and the explicit statement that these services are to be at no cost to the exoneree. However, the statute is fairly short and vague. There are a host of questions left unanswered after reading the statute; for example, what exactly happens in a re-entry services program, who helps the exoneree figure out what programs he or she qualifies for or which best suit the exoneree, what specific programs and services are actually available, how does an exoneree apply, who does the exoneree call for assistance, how long are exonerees entitled to the programs free of charge, and so on. While the Illinois statute is a step in the right direction, the statute is just too vague to adequately address the unique struggle that each exoneree goes through. However, as is true with many statutes and rules, this will likely be remedied in time as the state’s courts deal with cases involving the statute.
Another issue that must be addressed when pushing for mental health assistance for exonerees is, of course, the source of funding compensation. Where will the money come from to pay the exonerees, to pay the case managers, to pay for all of the programs? Although most people would agree that we must help the wrongfully convicted, money is an issue that must be discussed. Some states have funding compensation statutes which give undefined sources of funding. North Carolina pays awards out of its Contingency and Emergency Fund or from any other available state funds.41 New Hampshire pays awards from any money in the treasury “not otherwise appropriated.”42 Alabama pays awards out of any available state funds that the Legislature has “appropriated for that purpose.”43 Although vague, these state statutes at least indicate some source for funding. Most states do not mention funding at all.
The justice system is not perfect; however, every state should consider amending or creating rules to aid exonerees who have suffered due to the failure of their state’s criminal justice system. Hopefully, more states will create fair and adequate compensation rules and programs and plans that address an exoneree’s mental health upon release from prison. That is, perhaps, the best way for states to take a stance and provide for those that the system has wronged.
Camera C. Bacon is a third-year law student at Belmont University College of Law, where she is an active member of the Criminal Law Society, the Black Law Student Association and the Women’s Legal Society. Bacon is originally from Los Angeles, and prior to law school she worked as an intern under a Justice at the California Second District Court of Appeals. Bacon graduated from Fisk University with a Bachelor of Arts in English in 2017.
1 Edwin M. Borchard, European Systems of State Indemnity for Errors of Criminal Justice, 3 J. Crim. L. & Criminology 684 (1913).
2 The Innocence Project, https://innocenceproject.org (last visited Jan. 15, 2021).
3 John Shaw, Exoneration and the Road to Compensation: The Tim Cole Act and Comprehensive Compensation for Persons Wrongfully Imprisoned, 17 Tex. Wesleyan L. Rev. 593, 601 (2011).
4 Alberto B. Lopez, $10 Dollars and a Denim Jacket? A Model Statute for Compensating the Wrongly Convicted, 36 Ga. L. Rev. 665, 693.
5 Id. at 693-9c4.
6 Pierson v. Ray, 386 U.S. 547, 557 (1967).
7 Imbler v. Pachtman, 424 U.S. 409, 421-24 (1976). 8 Lopez, supra note 4, at 698.
9 Tenn. Code Ann. § 9-8-108(a)(7)(F).
10 Fla. Stat. § 961.03.
11 De Veaux, Mika’il, The Trauma of the Incarceration Experience, 48 Harv. C.R.-C.L. L. Rev. 257, 258 (2013).
12 Delaney, Mary C., et al, Exonerees’ Hardships After Freedom, 83-FEB Wis. Law. 18, 20 (2010).
15 De Veaux, supra note 11, at 258.
19 Miller, Ashley Nicole, Life After Exoneration, www.apadivisions.org, Mar. 2014,
22 Shaw, supra note 3, at 593s.
23 Id. at 594.
24 Id. at 595.
25 Tex. Civ. Prac. & Rem. Code Ann. § 103.052. 26 Tex. Health & Safety Code Ann. § 614.021.
29 In re Blair, 408 S.W.3d 843 (Tex. 2013). 30 Id.
31 Id. a t 849.
33 Id. at 847.
34 Id. at 848.
35 Id. a t 847.
36 Shaw, supra note 3, at 612. 37 Id.
38 Tex. Health & Safety Code Ann. § 614.021.
40 20 Ill. Comp. Stat. Ann. 1710/1710-125. This statute is cited in one Illinois case from 2018, which only mentioned the statute in passing. See People v. Glenn, 2018 IL App (1st) 161331, ¶ 20, 106 N.E.3d 462, 466.
41 N.C. Gen. Stat. Ann. § 148-84.
42 N.H. Rev. Stat. § 541-B:13.
43 Ala. Code § 29-2-165.