Las Vegas Sun

September 26, 2018

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Time for Nevada to enact law on wrongful-conviction compensation?

The $1.5 million settlement Dwayne Jackson won this week from Metro Police for serving nearly four years behind bars for a robbery he didn’t commit is far above the average payment wrongfully convicted individuals nationwide have received in recent years based on the length of their imprisonment.

But Nevada remains one of 23 states that doesn’t require government to pay those who are mistakenly incarcerated. That’s a situation the legal aid organization Innocence Project in New York wants to see changed. Clark County Commissioner Larry Brown, a member of the Metro Police Fiscal Affairs Committee that approved the Jackson settlement, said a compensation law in Nevada is worth considering.

“It’s something we should take a look at, and if it sets some minimums for compensation, that’s a good thing,” Brown said. “But I certainly wouldn’t want to legislate away the ability for us to deal with the victim.”

Brown said the transparency Sheriff Doug Gillespie and his agency displayed in admitting a crime lab error and working with Jackson attorney David Chesnoff led to a settlement that was “resolved very quickly” once talks began. Chesnoff agrees that the Legislature shouldn’t restrict the ability of parties to negotiate compensation.

“I have a great deal of respect for the Innocence Project but I also have a lot of faith in the private bar’s ability to get maximum compensation for individuals deprived of their civil liberties,” Chesnoff said.

Like many other wrongful convictions that have received widespread publicity, the Jackson error was linked to DNA evidence, in this case a mixup committed by Metro’s crime lab. The heightened role of DNA in overturning convictions, including those of death row inmates, has helped fuel interest in properly compensating those whose civil liberties have been lost by factors such as sloppy police work, ineffective defense attorneys, dishonest witnesses or prosecutorial misconduct.

Jackson’s compensation pencils out to roughly $375,000 for each year incarcerated, which places him slightly above the $357,142 Roberto Miranda received from Clark County in 2004 for each of the 14 years he served on death row based on a flawed murder conviction. A judge freed Miranda after finding that the Cuban native was poorly defended by a county public defender who committed numerous errors at the 1982 trial.

Both amounts were easily surpassed by Juan Johnson, who won a $1.9 million-a-year judgment from a federal jury in Chicago in 2009 following 11 years in prison on a bum murder rap, and Shawn Drumgold, who got nearly $1 million a year from a federal jury in Boston in 2009 for the more than 14 years he was incarcerated following a wrongful murder conviction.

Still, the Jackson settlement is more than seven times greater than the $50,000-a-year compensation that Stephen Saloom, policy director of the Innocence Project, said has become standard in states with compensation laws. That matches the maximum compensation President George W. Bush signed into law in 2004 for individuals exonerated of federal crimes, with the compensation doubling to as much as $100,000 a year in death penalty cases.

The Innocence Project, which advocates on behalf of wrongfully convicted individuals, complains that some of the 27 states that have also adopted compensation laws maintain uneven standards that often hurt exonorees. The organization, which is affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York, says that some states require compensation only through private compensation bills that must be approved by lawmakers, often a highly politicized process that requires exonorees to mount costly campaigns.

But Saloom said it is possible to craft a law that is fair, citing Texas as an example. There, wrongfully convicted individuals are entitled to $80,000 for each year of incarceration, in addition to an annuity, child support payments, tuition for education and full access to services that help them re-enter society. Saloom envisions a similar law working in Nevada that sets minimum standards for compensation from state and local government agencies but also gives exonorees the ability to seek additional compensation for issues such as intentional misconduct by the criminal justice system.

“The government took something from you so you deserve something in return,” Saloom said. “If you were wrongfully convicted and didn’t orchestrate that wrongful conviction yourself, then you are deserving of compensation for the years that were wrongfully taken from you.”

It took Jackson, who was released in 2006, five years and Miranda eight years to receive compensation following their prison releases. In Jackson's case, Metro didn't discover the DNA mixup until last fall. The Innoncence Project says one of the other advantages of a compensation law is that it could provide exonorees with immediate subsistence funds upon release, as well as help with food, housing, medical and dental care, psychological counseling, job skills training and education.

The idea of a minimum compensation law in Nevada is also endorsed by Allen Lichtenstein, general counsel of the American Civil Liberties Union of Nevada, as long as it doesn’t interfere with an exonoree’s ability to seek additional compensation.

“If you’re going to be tough on criminals, you need to make sure that when the government screws up that they can’t just say, ‘oops, sorry,’ ” Lichtenstein said.

Another supporter of a compensation law is Kate Kruse, a professor at UNLV’s Boyd School of Law and director of its Innoncence Clinic, which investigates wrongful conviction claims from Nevada prison inmates.

“A compensation statute would be a great benefit to the taxpayers in Nevada, who have had to pay settlements on an ad hoc basis as wrongful convictions arise,” Kruse wrote in an email.

Kruse wrote that compensation laws also can help judges find a way to help innocent individuals clear their names.

“In Nevada, the only remedy when DNA proves someone innocent is to be able to get a ‘new trial,’ at which point the charges can be dropped if the evidence to proceed to trial is insufficient,” she wrote. “But this does not provide a way for people who have been wrongfully tried and convicted to conclusively clear their names. The ability to clear your name is an intangible benefit that goes beyond what money can buy.”

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