Loyola University Chicago

School of Law

The State of Exoneree Compensation in the U.S.

Although wrongful convictions occur across the country, only 25 states, the federal government, and The District of Columbia have enacted statutes to compensate the wrongfully convicted. According to the Innocence Project, only half of exonerees receive compensation for the time they spent in prison.  The statutes vary from state to state, and some require the exoneree to file a claim in court while others require a personal legislative bill.  

The compensation amounts vary from state to state.  Texas provides the highest amount of monetary compensation, entitling exonerees to $80,000 per year of incarceration and $25,000 per year on parole or registered as a sex offender.  The Texas statute also provides for social services such as tuition at a public institution and the opportunity to buy in to the state employee health plan.  In contrast, exonerees in Montana are only eligible for educational aid, and only exonerees freed by post-conviction DNA testing are eligible.  

LAI works to get compensation for Illinois exonerees. The Illinois statute, 705 ILCS 505/8, allows compensation in three levels.  Exonerees who served up to five years are eligible for $85,350, those who served between five and fourteen years are eligible for $170,000, and those who served over fourteen years are eligible for $199,150.  The statute requires exonerees to receive a Pardon from the governor or a Certificate of Innocence before they are eligible for compensation.  To obtain a Certificate of Innocence, the exonerees must file a petition in civil court as required by 735 ILCS 5/2-702.  This petition must be filed within two years of the dismissal of the charges.  The petitioner must affirmatively prove his or her innocence by a preponderance of the evidence.  The statute also requires that the petitioner prove that he or she did not by his or her own conduct voluntarily cause or bring about his or her conviction. 

Few states’ compensation statutes include the provisions that the Innocence Project recommends for all states in order to properly compensate the wrongfully convicted.  The Innocence Project sets forth requirements for fair compensation, including recommending that compensation is given immediately after release. Compensation should be set at 50,000 a year.  The Innocence Project also recommends that states provide immediate re-entry funds and access to job training, educational, health and legal services after an exoneree’s release.

Many states with compensation statutes have a similar requirement that the exonerees can only be compensated if he or she did not contribute to the conviction.  Essentially, this clause seeks to prevent compensating persons who were wrongfully convicted as a result of their own actions.  The Seventh Circuit described a situation where this would apply where a defendant confessed to "take the fall" for the person responsible or the defendant withheld evidence that would prove their innocence in order to derail the investigation.  Unfortunately, this exception is sometimes applied to any exoneree who confessed or could not prove an alibi, even where the confessions were coerced by police misconduct.   

While many states have made an effort to compensate exonerees for the injustice they have suffered, there is still a long way to go until all exonerees receive the recommended level of compensation.