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Michigan Lawmakers Working to Fix a Program That Failed to Compensate the Wrongfully Convicted

by Anna Clark

ProPublica is a nonprofit newsroom that inv…

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

A bill moving through the Michigan House of Representatives would fix flaws in a 7-year-old compensation fund that the state set up to help wrongfully convicted people rebuild their lives.

Sponsored by Rep. Joey Andrews, a Democrat, along with 14 other Democrats, the bill would be the first substantive reform of the Wrongful Imprisonment Compensation Act’s eligibility requirements. If it becomes law, many people who would otherwise be denied compensation would become eligible for relief.

“This is going to be huge for a lot of people,” said Kenneth Nixon, co-founder and president of the nonprofit Organization of Exonerees. He spent nearly 16 years in prison before his conviction was vacated.

WICA, passed in 2016, was intended as a lifeline for people who experienced extreme injustice by offering $50,000 for each year of wrongful imprisonment. But, as a ProPublica investigation detailed in January, the bipartisan law’s narrow requirements have resulted in delays in compensation, partial settlements or even complete denials. Only people whose cases are overturned based on “clear and convincing” new evidence that they weren’t a perpetrator or an accomplice have been eligible for WICA compensation, a higher standard of proof than for other civil claims. This has meant that some former prisoners — for instance, those whose convictions were overturned for insufficient evidence — can be left out.

In Charles Perry’s case, which ProPublica highlighted, judges acknowledged that there was new evidence of innocence, but because his conviction was officially overturned due to prosecutorial misconduct and ineffective counsel, he got nothing.

Michigan has had 173 wrongful convictions in state courts since 1989, the fifth-most in the country, according to the National Registry of Exonerations. After an average of nearly 11 years in prison, many of these individuals are released with no home, no job prospects, no transportation and no resources to navigate trauma.

For years, advocates, a state commission and even some state Supreme Court justices have urged the Legislature to revisit the law. “I don’t like administering legal rules that I can’t explain to the people they impact,” wrote one justice in a concurring statement in Perry’s case. “Please fix it, legislators.”

On several key matters, the new bill proposes doing so. Significantly, it would change the standard of proof for former inmates to a “preponderance” of evidence showing they were not the perpetrator or an accomplice, instead of “clear and convincing” evidence, which is considered more daunting. In testimony to the House Criminal Justice Committee in March, where he serves as majority vice chair, Andrews said the higher standard is usually reserved for when the government takes away a person’s rights.

It’s “a very unusual burden of proof to be using in a civil matter,” he said, and it works against “the purpose of compensating the innocent,” especially in old cases when evidence has deteriorated and witnesses are no longer available.

The bill would also allow certain exceptions to the new evidence requirement. An individual would also qualify for relief if there was insufficient evidence to support their conviction, or if new evidence was available but the court reversed or vacated their conviction for other reasons.

Wolf Mueller, an attorney who said he represented at least 20 WICA claims, said the changes would make a big difference to a law he described as poorly written.

“If you shouldn’t have been tried in the first place, because there was insufficient existing evidence to convict you, then you should be compensated,” Mueller said. “You are just as much wrongfully convicted as somebody else who was lucky enough to find new evidence.”

At the committee hearing, Robyn Frankel, an assistant attorney general who directs the office’s Conviction Integrity Unit and heads the section responding to WICA claims, testified for the bill. The proposed changes, she said, would “remedy a number of difficulties that we were experiencing in the application of the law.”

For example, Frankel said, “removing the requirement that new evidence be the reason for the dismissal was prompted by our realization that more often than not, specific explanations are not provided at the time a case is dismissed.”

The bill would also make a number of other reforms. Among them: Pretrial detention would count as time spent wrongfully imprisoned, and people pardoned by the governor would be eligible to file a claim.

An analysis by the House Fiscal Agency said the bill would result in “an indeterminate, but likely marginal annual increase in claims and awards” for compensation. Average yearly compensation under WICA over the last four fiscal years has totaled about $9.8 million, it said.

Two weeks ago, the House Criminal Justice Committee voted to favorably report a substitute version of the bill, tweaking it to account for the pardon process. Eight members supported the recommendation, three opposed and two abstained.

Rep. Graham Filler, the committee’s minority vice chair, abstained after asking at the hearing about why there’d be a different standard of proof for a WICA claim than for a conviction.

To that, Marla Mitchell-Cichon, counsel to the Innocence Project at Thomas M. Cooley Law School, said the difference is that a WICA claim is not a criminal matter. A full House vote is anticipated in April or May, a legislative aide to Andrews said in an email.

As the bill moves forward, Andrews said in an interview with ProPublica that he hopes more colleagues sign on, including Republicans. Next step after the House would be the state Senate, which also is led by Democrats.

If the bill becomes law, wrongfully convicted people whose cases were overturned based on insufficient evidence would have an 18-month window to show they are eligible for compensation under the new reforms. However, people who were ineligible for reasons other than insufficient evidence would still not qualify, and people whose claims were already denied, or ended in settlements, would not be eligible to file again.

Kenneth Nixon, who received partial compensation after his conviction was overturned, stands outside of a property he purchased with the goal of opening an adult foster care home there. The WICA settlement has helped, he said. “It’s a project to help people. I want to be helpful wherever I can to society,” said Nixon. “The cash has helped with getting stuff done.” (Sarahbeth Maney/ProPublica)

Nixon, on behalf of the Organization of Exonerees, is pushing for the bill to go still further. In a March 11 letter to the committee, he argued that past claimants should be allowed to benefit from the reforms. “Fairness requires that the positive changes to WICA benefit all exonerees, not just those with claims in the future,” he wrote. In 2022, Nixon received a settlement for less than he anticipated from WICA.

In the letter, Nixon also expressed concern that innocent people whose cases were overturned for reasons other than insufficient or new evidence — such as improper jury instruction or ineffective counsel — could still be excluded. And, he said, the compensation amount should be adjusted yearly for inflation, as the $50,000 allotted when WICA passed in 2016 is worth less in 2024. (Had the original amount kept up with inflation, it would now be about $64,700 per year.)

It’s important to get WICA right, Mueller said. The compensation “is not just life-changing from a monetary standpoint; it’s a dignity standpoint,” he said. “Somebody recognized that they had been wronged and wanted to make it right.”

This content originally appeared on Articles and Investigations - ProPublica and was authored by by Anna Clark.

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