A stalemate between Maryland’s Board of Public Works and five exonerated men seeking compensation for their years in prison — a stalemate that became increasingly public over the summer — ended with the board awarding the men millions of dollars, which they will receive over the coming years.
The incident sparked a larger discussion about whether the BPW, comprised of Gov. Larry Hogan, Comptroller Peter Franchot and Treasurer Nancy Kopp, was the proper entity to evaluate the cases of individuals convicted of crimes they did not commit.
Hogan said that the board lacked the “expertise, capacity, or personnel to make determinations as to the damages incurred for each individual’s pain and suffering” and that the legislature needed to change the process.
Legislators and advocates plan to do just that in the 2020 General Assembly session.
“I think we heard what the governor said and we’ll see if we can find a new process,” Del. Kathleen M. Dumais, D-Montgomery, said. “If the excuse was we’re not equipped, we’ll find someone else.”
Current law allows individuals to petition the board for compensation if they have been pardoned by the governor or received a writ of actual innocence from the prosecutor certifying that their conviction was in error.
Michelle Feldman, state campaigns director for the Innocence Project, said the legislation being proposed by Dumais and Sen. Delores G. Kelley, D-Baltimore, would take exoneree compensation out of the hands of the BPW and place it with the courts.
Most states have some kind of judicial process for compensation, according to Feldman. Thirty-five states have exoneree compensation laws and 21 have courts adjudicate claims, according to the Innocence Project.
“I think an important part is taking it out of the Board of Public Works to determine who is eligible and how much they get,” Feldman said, adding that the current process is not working.
Michele Nethercott, director of the Innocence Project clinic at the University of Baltimore School of Law, said a key aspect of the proposed legislation is the speed with which support and money would be provided to exonerees, who often deal with homelessness and other crises once they are released from prison.
“They can’t wait years and years to get medical care and mental health services to try to patch their lives back together,” Nethercott said.
The five exonerees who received compensation this year — Jerome Johnson, Lamar Johnson, Walter Lomax, Clarence Shipley and Hubert James Williams — had all petitioned the board for compensation for their combined 120 years spent in prison before they were exonerated. Some of the petitions had been pending for more than a year when attorneys for four of the men, working pro bono, sent a letter to the board in July asking for action.
The board announced in October that it would award the men $78,916 for each year they were incarcerated plus additional funds for mental health and financial counseling.
Dumais said that amount will likely be what is proposed in the legislation. Franchot said $78,916 was the annual median household income in the state.
The bill will also include an offset provision if the exonerees receive money in a federal lawsuit over their arrest and prosecution that requires them to reimburse the state, Dumais said.
A task force to study wrongful convictions was formed in 2017 and published recommendations in December 2018, but none of them have been adopted by the General Assembly. The final report of the task force recommended that the Board of Public Works adopt a process and procedure for handling petitions for compensation from exonerees.
Last year’s legislation made compensation mandatory to those who qualified and established standards to determine the amount. The cross-filed bills died in committee.
Dumais said the publicity the issue received this year should help underscore the importance of reform legislation.
“It’s not an everyday issue that is before the public, so it’s sort of under the radar, (but) it’s something that rose to the top of the list for advocates and the public in general,” she said.
Dumais said opposition to bills in the past stemmed from concern about the cost.
“A lot of times it’s the money,” she said. “It’s the fear that the floodgates are going to open, but there’s really good documentation about how many cases there are. … It’s not going to be a floodgate.”
Feldman also said pushback from legislators, historically, has been about the fiscal impact.
“I think any bill with a price tag is always a challenge,” she said. “I think we have a good argument that the alternative — filing a civil rights lawsuit — will leave taxpayers on the line for a lot more money and it’s better to have a set amount.”
Nethercott said she hopes the attention the five men and their cases received will fuel change in the General Assembly.
“We are trying to do something that is as straightforward as we can make it,” Nethercott said. “What we’re really trying to come up with is a workable system of compensation for people who qualify for it so they can get compensated as quickly as possible and the process is as straightforward as can be, while at the same time addressing the state’s legitimate fiscal concerns.”