Should state change compensation law for wrongfully convicted?

Wrongfully imprisoned and released (l to r): Mark Schand, incarcerated 27 years, received $450,000; Kevin O'Loughlin, incarcerated nearly four years, settlement pending; and Lawyer Johnson, incarcerated 10 years, received $275,000. Credits: Schand photo by Diane Bladecki; O'Loughlin and Johnson photos by Jenifer McKim.


Public defenders, advocates and former inmates whose convictions were overturned are meeting at the Massachusetts statehouse on Monday to call for changes to a state law that provides compensation to the wrongfully convicted.

They say the law takes too long to help released inmates and sets an unreasonable bar to acquire compensation, forcing many to settle rather than fight a costly legal battle. The effort comes nine months after a story by The New England Center for Investigative Reporting revealed problems with the 2004 law, prompting new legislation to fix it.

Massachusetts is one of 37 states with laws that compensate the wrongly convicted, but of the 67 people who have filed for compensation, less than half have so far have received any money. The average payout is $364,228, according to state data recently obtained by The New England Center for Investigative Reporting.

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Some are still awaiting a decision three or four years after first filing for help, records show.

“It’s just delay and delay and delay,’’ said Boston lawyer Michael Kendall, who says too often the state’s Attorney General’s office fights cases that have already been long litigated in court. The state will “either knock down the amount or perhaps wear them out and not have to pay at all. It’s been truly frustrating.”

One of his Kendall’s clients, Kevin O’Loughlin, has been waiting more than two years to get compensation. His conviction for raping an 11-year-old girl was vacated in 2015 by a superior court judge in Middlesex County.

O’Loughlin, who was charged with the rape when he was 19, spent nearly four years in prison and say he was a target for violent assaults from other inmates.

The group will be meeting on what is known as international “Wrongful Conviction Day,” where advocates also are calling for a new “forensic commission” to prevent tainted evidence from distorting the legal process.

Just this summer, three men who each served decades in prison for murders have seen Massachusetts judges vacate their convictions or District Attorney’s offices decide not to re-prosecute their cases.

Victor Rosario, a 60-year-old Boston resident, spent 32 years in prison, wrongly convicted of setting a fire in Lowell that killed eight people.  His legal battle to win freedom and vindication took him to the state’s highest court. Earlier this year, Supreme Court Justice Kimberly Budd described Rosario’s conviction as a “substantial miscarriage of justice.”

Rosario, who now works as an outreach pastor at the Tremont Temple Baptist Church in Boston, plans to seek compensation from the state.

“There’s no way I can get those years back,” said Rosario, sitting in his church office with his wife, Beverly Rosario. “What happened that I didn’t have the opportunity to become somebody? My whole entire dreams, where they went?”

Doing the math to calculate what all those lost years are worth can be depressing.

Even if Rosario were awarded the maximum allowed in Massachusetts, it would amount to just $15,625 a year for each year he was jailed.

In neighboring Connecticut, the payout for people like Rosario averages more than ten times that – $183,000 for each year imprisoned, according to a recent study conducted by Jeffrey Gutman, a professor at The George Washington University Law School.

Nationwide, compensation for the wrongly convicted averages just under $24,000 for each year of incarceration, Gutman’s study found.

In Massachusetts, the lawmaker who wrote the compensation law in 2004 now wants to change it. State Sen. Patricia Jehlen, a Democrat from Somerville, wants to remove the $500,000 cap on total compensation and lower the legal burden for getting that money.

Jehlen’s bill would potentially lower the legal bar for people such as Rosario, meaning that evidence “consistent with innocence,” such as flawed witness testimonies, would more easily open the door to eligibility for compensation.

“There’s an issue of justice, if you take people’s liberty for long periods of time, the state owes them a moral debt,” she said.  “They owe them a financial debt, too.”

Jehlen understands that lifting the cap on money could trigger pushback from fiscal hawks.

“It’s tough, we’re very constrained with budgets. But we didn’t have any problem paying to keep them locked up all that time,” she said.

An initial hearing on Jehlen’s bill in June drew no critics, but the legislation has to clear both the Ways and Means and Judiciary committees.

Most states that limit payouts use a formula based on the number of years a person was imprisoned, Gutman said.

“The strange thing about Massachusetts has been that, in effect, the longer that you’re incarcerated the less you get per year,” Gutman said.

Settlements negotiated with Attorney General Maura Healy’s office earlier this year offer a clear example. Charles Wilhite of Springfield spent just over three years in prison on a murder conviction and was acquitted after getting a second trial. He received $400,000 from the state.

Angel Echavarria, a former Lynn resident, received a $450,000 settlement but was locked up for seven times as many years.

Emily Snyder, a spokeswoman for Attorney General Maura Healey, said staff attorneys believe relief for the wrongly convicted is very important, but they must abide by the limits of the law. Healy’s office is open to changes to make the process more efficient for the wrongly convicted.

Critics of the law also say that the long path to getting any compensation deprives recently exonerated people of help they desperately need.

Lisa Kavanaugh, a public defender who directs the New England Innocence Program, said people are not only deprived of liberty, but their lives are completely upended.

Kavanaugh backs Jehlen’s legislative reform, which also includes a plan to offer immediate cash assistance, free tuition at state colleges and other social services to people who lost years of their lives to a wrongful conviction.

“One of the worst things that happens to people who are sent to prison is that the ties to the family and community are often irreparably broken,” she said. “When you walk out of prison, you don’t have that kind of support. You are alone in a more profound way than anyone can imagine.”