The Long Road to Compensation for the Wrongly Imprisoned

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We’ve all heard about people released from prison because they were wrongfully convicted. But did you know that many of them are eligible for monetary compensation? How much? In California it’s $140 for every day spent in state prison.

Ten years behind bars adds up to $511,000.  At 24 hours a day it comes to $5.83 an hour.  Less than minimum wage.  And if you spent time in jail during your trial – which can take 2 or 3 years -- that time does not count. Only time in state prison counts. 

So let’s say your conviction was overturned. You’re free! But don’t expect them to hand you check as you head out the door. Nope. There’s a long legal road to compensation and no guarantee you’ll get it. Here are the 11 steps it takes to get compensated.

Step 1. Get a Lawyer.  Yes, you need yet another lawyer, one that specializes in Penal Code Section 4900, the compensation law. The lawyer gets paid out of your compensation if you win. That will lower your compensation.  But believe me the process is complicated and you definitely need an attorney.

Step 2. Get all your evidence together. The evidence in your favor has to be very strong to prove innocence. For example DNA evidence that someone else committed the crime, or physical evidence that you were not at the crime scene is strong. If your lawyer is smart he/she will apply for a finding of “factual innocence” from a Superior Court Judge. This will virtually guarantee that your claim will be approved. If you don’t have a finding of “factual innocence” then it will be much harder to get your compensation claim approved. Also, if you confessed -- even under duress -- that is really hard to undo. Or if someone identified you and is sticking to their story, that’s tough to overcome.

Step 3: File a claim with the review board within 2 years of your exoneration. The official name of the board is the California Victim Compensation and Government Claims Board. There are three people on it. If you are working on getting the finding of “factual innocence” from a judge, you should still simultaneously apply for compensation. You’d don’t want to miss the two year deadline while waiting for the “factual innocence” decision.

Step 4: Your claim goes to the Attorney General’s office. The AG’s office has 60 days to rebut or refute evidence in your claim.  But again, if you have that finding of “factual innocence” from a judge the AG’s office will likely not fight the claim. Obie Anthony, from our story, had such a finding. His compensation claim was approved.

Step 5: Hearing day. The Board has seen all your paperwork ahead of time, including the response from the AG’s office. If their staff has recommended approval, then the hearing can be just a few hours or a day. More complicated cases can take up to three days. 

Step 6: Wait, cross your fingers, pray.  The decision does not have to be unanimous. Two out of three votes is enough to approve your claim. About 75% s of the exonerated win compensation. That’s up compared to a few years ago when the process was harder. They made the process easier by allowing exonerated prisoners to get that finding of “factual innocence.” (See how important that is?)  Rafael Madrigal, from our story, tried to get a finding of “factual innocence”, but a judge denied it.  The review board followed suit and denied Rafael’s claim for compensation. He’s appealing.

Step 7. If you win, congratulations! But the check is not in the mail yet.

Step 8:  The Board sends the approved claim to the state legislature for funding.  

Step 9: State Legislature issues an authorization for funding.

Step 10: Authorization goes to the Governor for a signature.

Step 11: The Governor sends it to the State Controller’s (treasurer’s  office). It will probably take them a few weeks or a month  to cut the check.

Phew!  Only then can you pop the cork on some really good champagne.

As you can see it’s a rather long process. Six months to a year, maybe longer in some cases.  Little wonder most exonerees have to get a job right away to get them through this period, and even then some get their claims denied. No $140 a day, and often not even an apology from the justice system that put them behind bars.

Note: This article is not intended nor should it be used as legal advice or an official source of legal information.