Missouri had the chance to do right for the wrongly convicted. Mike Parson said no | Opinion

Although Missourians Kevin Strickland and Lamar Johnson were both recently found to have been wrongfully convicted of murders committed by others, neither man was eligible for Missouri state wrongful conviction compensation. By substantial bipartisan majorities, however, the Missouri legislature in May 2023 passed a bill that would have helped keep the state’s moral promise to its exonerated residents. But, while Strickland and Johnson were celebrating their and the nation’s freedom on the Fourth of July, Gov. Mike Parson was working on his message vetoing the bill.

Missouri has one of the most restrictive wrongful conviction compensation statutes in the country. According to the National Registry of Exonerations, 54 people convicted of crimes in a Missouri state court have been exonerated since 1989. Together, they served 660 years. Only nine have received compensation under the state statute. Nationwide, exonerees in states with compensation statutes spent almost 27,000 years in prison. Far from compensating all of them, state compensation statutes have paid exonerees who collectively experienced only half that time in jail. In Missouri, it is even worse. Less than 20% of this lost time was compensated for.

That’s because compensation is available in Missouri only to those exonerated based on DNA analysis. Missouri is the only state with that restriction. DNA exonerations account for only 17% of those on the National Registry. The Missouri statute is out of step with most states in another way. It compensates exonerees only $100 per day of wrongful incarceration.

The bill Parson vetoed addressed both problems. It eliminated the requirement that proof of innocence be confined to DNA testing and raised the compensation amount to $179 per day, about the same as neighboring Kansas. The bill also made clear that to be eligible for compensation, petitioners must demonstrate that they are “actually innocent.”

All of this is quite sensible. So, why did the governor veto it? His primary rationale was that wrongful convictions occur in counties where local prosecutors, judges and juries dispense criminal justice. If they made a mistake, why should the state pay? That reasoning would torpedo all 39 state compensation statutes in states which, as of June 2023, have authorized payments of nearly $1 billion to 1,164 exonerees who collectively served over 13,000 years in prison. These payments are a lifeline to those who wrongly languished in prison and seek to get back on their feet.

Bill made exonerees prove their innocence

Parson does have a point: The governmental entity responsible for the wrongful conviction should pay for it. That’s why I have proposed that counties pay a per capita assessment for every felony conviction and incarceration into a state wrongful conviction compensation trust fund. The rates of that assessment might account for the numbers of wrongful convictions in that county. But it is also true that some wrongful convictions are not the fault of a malevolent or negligent county actor. Some just happen, as in cases with good faith, but mistaken, witness identifications.

Several states have adopted a better way to resolve the governor’s concerns: Permit the exoneree to sue the local county or its employees for their wrongful convictions. (The bill passed by the General Assembly forbade such suits if the exoneree received state money.) If they prevail, exonerees must pay back the state from their recovery. The governor also feared that people who are not really innocent would get paid: The bill “could allow anyone released from prison … who simply claimed innocence to receive compensation.” However, the legislation made it clear that only those who have demonstrated their innocence are entitled to compensation.

In his veto message, the governor also took a swipe at local prosecutors who try to correct wrongful convictions in proceedings under a 2021 statute that permits them to ask a court to vacate convictions when there is clear and convincing evidence of innocence or constitutional error. As he put it, “local governments should bear the financial cost of their own actions.” Plainly, Parson’s “You do it — you buy it” message sought to discourage local prosecutors from rectifying wrongful convictions.

While most states, both red and blue, have recognized the moral imperative of compensating the wrongly convicted by passing or improving statutes that, however imperfectly, try to help the exonerated, Missouri sadly fumbled its chance to join them.

Jeffrey S. Gutman is a professor of clinical law at George Washington University Law School in Washington, D.C., and a special correspondent to the National Registry of Exonerations.