KENTUCKY DOES NOT COMPENSATE PEOPLE WHO WERE WRONGFULLY CONVICTED AND IMPRISONED
Kentucky is one of 32 states that do not provide compensation for people who have been wrongfully convicted and imprisoned. Prosecutors in Kentucky are given absolute immunity even though there is legislation that allows the State to pay any jury awards against prosecutors.
The legislation KRS 15.753 Indemnification from financial loss in legal actions for Attorney General, Commonwealth’s attorneys, county attorneys, and their staffs.
does not apply if the prosecutor is entitled to sovereign immunity. Therefore the legislature says the state will pay any awards against prosecutors, but then by applying the doctrine of immunity takes that relief off the table.
It is possible that the Legislature could pass an appropriation to compensate a particular person, but that would face constitutional impediments against special legislation rules.
Nothing prevents the legislature from enacting a compensation program for persons who have been wrongfully imprisoned by the state.
There is one possible remedy, and that would be reliance on seeking relief under the Federal Civil Rights Act. There are some federal rulings that say states can’t exempt people who have had their rights violated by a state official acting under color of the law. We are unaware of any Kentucky case which tested Kentucky law on this point. A recent challenge to a Texas law was successful.
“Only 18 states, the federal government and Washington, D.C., have laws for compensating the exonerated. Compensation can take years to get, and the laws often aren’t used by exonerees because they may need an official pardon or a court must declare them innocent.
Compensation amounts can vary widely. Some states, such as West Virginia, have no cap on the amount that can be received; others, such as Maine, set a maximum of $300,000.
Employers are leery of hiring convicts who may have been wrongfully convicted. Job skills are so obsolete that some exonerees have never sent an e-mail or typed on a computer.
A large number of these men — more than 95% are men, according to the Michigan study — grapple with emotional problems. Some have narrowly escaped execution on death row. Others have been assaulted by other inmates or kept in isolation. Many are angry. Some resort to crime after their release.
“Innocent people do some of the hardest time. They never reconcile themselves to why they’re in prison. They feel their lives have been taken away,” says Justin Brooks, executive director of the Innocence Project chapter at California Western School of Law in San Diego. “We expect them to just start functioning in the workforce. But there’s a stigma to having been incarcerated.”
Just 18 states, Washington, D.C., and the federal government have compensation laws for the wrongly convicted. Amounts are sometimes determined by a state agency, sometimes by a court and can be capped by law. Final payments vary widely:
Alabama: Minimum of $50,000 for each year served.
California: $100 a day for each day served.
District of Columbia: No cap.
Illinois: Maximum $15,000 for up to five years; $30,000 for six to 14 years, $35,000 for more than 14.
Iowa: $50 a day for each day served and lost wages up to $25,000 a year, plus attorneys’ fees.
Maine: Maximum $300,000. No punitive damages.
Maryland: No cap on compensation described as “actual damages sustained.”
Montana: Free tuition to any school in the state’s university system.
New Hampshire: Maximum $20,000.
New Jersey: Capped at twice the amount earned the year before incarceration or $20,000, whichever is greater.
New York: No cap.
North Carolina: $20,000 a year, total not to exceed $500,000.
Ohio: $25,000 a year of incarceration, plus lost wages and attorneys fees.
Oklahoma: $175,000 maximum. No punitive damages.
Tennessee: $1 million cap.
Texas: $25,000 per year of incarceration, total not to exceed $500,000, plus one year of counseling.
Virginia: 90% of the average Virginia income for up to 20 years; $10,000 in tuition to enroll in the state’s community-college system.
West Virginia: No cap.
Wisconsin: $25,000 cap.
Federal government: $5,000 cap.”
Sources: Adele Bernhard, professor of law at Pace University; The Innocence Project