A bill awaiting action on Gov. Mike Parson’s desk would allow more state inmates released after being proven innocent to receive compensation — with a larger payment — but they would have to give up the right to sue the people who put them behind bars.
The bill, passed a day before the Senate descended into complete gridlock, would also fix problems identified by the courts with a 2021 law allowing prosecutors to seek judicial review of past cases and creates a new state-level unit to assist prosecutors with case investigations.
Overshadowed during the session by headlines about issues with former St. Louis Circuit Attorney Kim Gardner and efforts to bring the St. Louis Police Department under state control, the bill also creates new crimes, eliminates the sentencing disparity between crack and powder cocaine and sets new standards for police chief training.
Shepherded to passage by state Sen. Tony Luetkemeyer, R-Parkville, the bill removes the provision limiting payments to cases where innocence is proven “solely” as a result of DNA analysis.
Written in 2006, the limitation “was really obsolete because we’ve gone through and cleared out all of the old DNA exoneration cases,” Luetkemeyer said in an interview with The Independent.
If signed by Parson, inmates who are cleared in a case brought directly to the courts or by a prosecutor seeking judicial review of a conviction would become eligible for the payments. The bill increases the per-day amount to $179 from $100 and the allowance for annual payment to $65,000 from $36,500.
“The worst thing that the criminal justice system can do is convict and incarcerate an innocent person,” Luetkemeyer said. “And so this statute reflects that when a state has that happen, that we owe some debt to the individual who’s wrongfully incarcerated.”
Since the legislature opened a path in 2021 for prosecutors to seek review of past convictions, two long-time prisoners who had maintained they were innocent have won release.
Kevin Strickland was released in November 2021, exonerated after nearly 43 years in prison for a triple murder he did not commit. Lamar Johnson was freed in February, 28 years after the slaying of a friend by two masked men.
Neither case involved DNA evidence and neither man is eligible for compensation.
If Strickland had qualified for the amount in current law, compensation would total $1.5 million. For Johnson, the amount would be about $1 million. The higher compensation in the bill boosts those numbers to $2.7 million for Strickland and $1.8 million for Johnson.
But the expanded eligibility is not retroactive and it comes with several other problems, said Tricia Bushnell, executive director of the Midwest Innocence Project.
“We are hopeful that this is a first step and not a last step,” Bushnell said. “Unfortunately, this bill as passed actually won’t compensate very many people at all.”
By accepting state compensation, the freed person agrees not to sue for civil rights and other violations, Bushnell said. And because it is paid as an annuity, a person like Strickland, released at age 62, would have to live past 100 to receive the full amount due.
There is no right to inherit any amount owed at death, so payments would end if the freed person died before receiving full compensation.
“So if he passed away, he would be unable to provide anything to his family who had already lost him for those 43 years as well,” Bushnell said.
The litigation waiver is the biggest issue with the legislation, she said. It is in current law, but with few innocence cases involving DNA, it had little impact.
Strickland in April sued the Kansas City Board of Police Commissioners and five Kansas City police officers involved in the investigation that led to his original conviction. The case was transferred May 8 to the U.S. Court for the Western District of Missouri.
People freed after proving civil rights violations that put their convictions in doubt have won large awards and settlements in recent years. Ryan Ferguson, freed in 2013 after showing prosecutors withheld evidence a witness lied in his murder case, was awarded $10 million in a 2017 federal lawsuit, $1 million for each year he was in prison.
The results of those lawsuits show the compensation should be larger, and paid out with a larger lump sum, Bushnell said.
“It won’t compensate people in a way that may be meaningful within their lifetime,” she said.
Luetkemeyer defended the compensation plan. It adopted payout amounts from legislation filed by Sens. Barbara Washington, D-Kansas City, and Steve Roberts, D-St. Louis.
By accepting it, a freed person is guaranteed “either a very long term steady stream of income, or a lifetime stream of income, and so it really makes sure that the person is provided for once they get out, once the conviction has been overturned,” Luetkemeyer said.
The litigation waiver is a matter of the freed person deciding whether to take a sure income or take a chance on winning a larger amount in court, he said.
“In terms of the waiver, you know, my belief is that if you’re going to decide to file a civil lawsuit that should be your remedy,” Luetkemeyer said. “If you decide that you want to seek restitution from the state, that should be a remedy.”
Washington and Roberts’ legislation included a $100,000 lump sum initial payment and $80,000 annual payments, inheritable upon death.
“After losing 28 years, I’m ecstatic to be free and grateful to everyone involved in freeing me,” Johnson said during testimony on Washington and Roberts’ bill. “But while I have regained my freedom, I have come out with nothing but the clothes purchased for me by my friends and my attorneys. I return home free, but with no ID, no driver’s license, no credit history, no work history, no rental history. I have no car, no furniture. No place to call home.”
Online fundraising efforts organized by the Midwest Innocence Project have raised almost $1.8 million for Strickland and nearly $600,000 for Johnson.
The law allowing prosecutors to seek judicial review of convictions was passed in 2021 after the Missouri Supreme Court ruled Gardner did not have authority to attempt to overturn Johnson’s conviction. A fix included in this year’s bill is in response to another high court decision, from February, that found the law doesn’t apply in a case where the conviction was obtained after a change of venue.
Only the prosecutor in the county where the case was decided, not the prosecutor in the county where the case originated and was investigated, could seek a review, the court decided. The bill allows the prosecutor in the originating county to proceed.
The support for the process puts a two-attorney conviction review unit in the Office of Prosecution Services. The unit could accept applications from inmates with no other avenue for appeal as well as conduct reviews for prosecutors, making non-binding recommendations.
“This is just really a resource for prosecutors around the state who may not have the time to diligently look through and research all these old cases,” Luetkemeyer said.
With all the changes, lawmakers still haven’t given inmates a direct path to the courts to present evidence of their innocence, Bushnell said. The only people currently incarcerated who can do that are facing the death penalty, she said.
“We’re very excited to keep talking about it, thinking about it and understanding it,” Bushnell said, “and that folks understand what it is that freed and exonerated people go through when they return home. We still have a good way to go.”
This story was originally published on the Missouri Independent.
