Michigan's wrongful conviction compensation law remains under fire. Here's why
Apr. 22—After spending 17 years in prison on a murder conviction that was eventually overturned, Hattie Mae Tanner says she's being denied justice again thanks to a technicality in Michigan law preventing her from receiving compensation for her time served.
In 2017, a federal appeals court panel overturned Tanner's conviction due to insufficient evidence. A federal judge hearing Tanner's case remarked the Battle Creek woman's conviction and the possibility of her innocence after more than a decade in prison was the type that made judges "lose sleep at night."
But Tanner can't get money for her time spent in Michigan's prison system because the 2016 state law meant to compensate the wrongfully convicted gives cash to people whose cases were overturned because of new evidence.
"It's really wrong," said Tanner, 61. "It doesn't matter. What matters is you sent me to prison for something I didn't do."
She is among those speaking out against the state law, but hers is not among the cases challenging it. Tanner never filed for compensation because there is no new evidence in her case and her lawyer determined it was a losing fight without legislative changes.
The new evidence requirement is one of a few provisions in the Wrongful Imprisonment Compensation Act that has been the subject of numerous appeals since the law's 2016 creation.
In three years, seven individuals challenging provisions of the law have sought relief in the Michigan Supreme Court, but none have so far been successful. The appeals have ranged from challenges to the new evidence provision to arguments over whether someone should receive compensation for time spent in jail before trial.
Last week, Attorney General Dana Nessel's office, after fighting one claim from a wrongfully convicted individual in the state Court of Claims and state Court of Appeals, decided to switch its position before Michigan's high court. Nessel's office's understanding of what constituted new evidence had evolved to include testimony in pre-trial hearings that wasn't used at the actual trial, Assistant Attorney General Robyn Frankel indicated.
Frankel told the seven justices on April 7 the change reflects the "ever-changing landscape" of the law. Compensation claims under the 2016 law always seem to have a "glitch" or "bump in the road," she said.
"I don't know that the legislators that put the statute together were all lawyers thinking along the same lines that we are," Frankel said. "... I don't know if the Legislature would look at it and do it differently now. I know that this court in other cases has encouraged the Legislature to take a second look at WICA (Wrongful Imprisonment Compensation Act)."
During the hearing, Justice Elizabeth Clement observed "we have WICA cases, it seems, like every month."
In April 2019, Justice Bridget McCormack noted the legal language that barred one appellant from getting compensation was a "troubling" outcome perhaps "unforeseen" by the Legislature.
In that case, Dennis Tomasik had sought an overturning of his criminal sexual conduct conviction on both evidentiary error and new evidence. The Michigan Supreme Court in 2015 overturned his conviction on the evidentiary error but didn't bother ruling on the question of new evidence because the first element was enough to overturn his case.
But without a finding of new evidence, Tomasik is barred from compensation and "out of luck," McCormack observed.
"Under these unique circumstances, I encourage the Legislature to consider whether it intended to exclude individuals such as the plaintiff — call them 'new evidence plus-ers' — from the (Wrongful Imprisonment Compensation Act)," McCormack said.
McCormack's comments were a "very gentle" yet "appropriate" nudge to make changes to the law, said Megan Richardson, a clinical fellow at the Michigan Innocence Clinic at the University of Michigan.
"Now that we've actually seen a bunch of these claims go through, we've realized, yes, we have some problems here," Richardson said.
'New evidence' standard
After years of attempts to pass a wrongful imprisonment compensation statute, the GOP-controlled Michigan Legislature in 2016 passed and Republican former Gov. Rick Snyder signed the Wrongful Imprisonment Compensation Act, a bill sponsored by a Democratic lawmaker. The law required the state to pay individuals $50,000 for each year they spent in prison after their case had been overturned.
To claim the compensation, wrongfully convicted individuals must sue the state in the Court of Claims where a judge considers several factors including whether "new evidence" was cited as the reason for the conviction reversal and whether there was "clear and convincing evidence" of a person's innocence.
Between August 2017 and January 2021, more than $22 million had been paid to wrongfully convicted.
But plenty of others have been denied based on the evidentiary requirements. Others were denied portions of requested compensation related to the time they spent in jail while awaiting trial.
Over the past few years, the Michigan Supreme Court denied three appeals related to new evidence, compensation for pre-trial incarceration and a dispute over whether an individual deserved compensation for the dismissal of one criminal charge while still serving a sentence on a second.
The Supreme Court heard arguments on two other cases in March and April over what constituted new evidence and whether an individual qualified to get money for a parole violation sentence when it was a wrongful conviction that triggered the violation. Two other applications for the high court to hear cases are pending, and they focus on what constitutes new evidence and compensation for pre-trial incarceration.
"It has helped a lot of people, obviously, but there are all of these unintended consequences," said Wolf Mueller, a lawyer who has represented more than a dozen wrongfully imprisoned individuals. His clients include the first person to be paid out of the fund, Marwin McHenry, and the first to be denied, Jason Shepherd.
Shepherd's daughter was 4 years old when he was imprisoned for a murder he didn't commit.
When his case was thrown out four and a half years later because of insufficient evidence, Shepherd said his main focus was getting back to his daughter, but that didn't soothe the sting of the state's 2017 denial of compensation.
"I wasn't surprised at all because they'd already been doing me wrong since I was in front of them" for trial, said Shepherd, who has since been certified in construction technology and works to keep young kids out of the criminal justice system in North Carolina.
"I can't live my life based on something someone owes me that I've got a snowball's chance in hell of actually getting based on my experience with the court," he said.
The wrongful imprisonment compensation law, Mueller said, was "poorly drafted."
"That's why these cases are making it to the Supreme Court," he said. "They needed something on the books to start the compensation issue rolling, so to speak, so they settled for something that was inadequate."
Democratic former state Sen. Steve Bieda of Warren had worked on a compensation plan for 12 years before his Wrongful Imprisonment Compensation Act was passed in 2016 — a feat Bieda called a "remarkable," bipartisan achievement.
Even then, the lawmaker stated publicly that it was a first step.
Bieda said negotiations with Snyder's office and Republican former Attorney General Bill Schuette were necessary to get something on the books.
"This was sort of an opening of a door that had been shut for years," he said.
Other loopholes
Besides the "new evidence" requirement, the law also stumbles on the standard of proof claimants must meet, the Innocence Clinic's Richardson said. The law requires newly freed individuals to prove their innocence through "clear and convincing evidence," but a lower bar of proof, "preponderance of evidence," usually is the standard in civil cases.
"Why are we forcing people who have been exonerated to go back to court and prove their innocence again?" Richardson said.
Others have taken issue with the law's ban on compensation for time spent in jail as they awaited trial and have argued up to the Michigan Supreme Court on the issue. But the high court last year denied Devontae Sanford an additional $27,000 for the 198 days he spent in a youth detention center prior to his trial.
Sanford's murder convictions were set aside by Wayne County after eight years in prison due to police misconduct. The state paid him $408,000 for his time in prison but denied the additional $27,000 because the law does not provide compensation for time spent pre-conviction in jail.
"I have no idea why we would be against giving them compensation based on the time they were arrested," Richardson said.
The issues with the law are expected to compound as the number of conviction integrity units increases. The Wayne County Prosecutor's Office started its own unit in 2018, the Attorney General's office in 2019 and Macomb, Oakland and Washtenaw prosecutors announced plans this year for similar units.
The Legislature should prepare for the prospect of additional exonerees and more compensation claims with the increase in conviction integrity units, Richardson said.
"The sheer number of filings that could be made — that wasn't anticipated," she said. "Does the fund even have enough money to pay that out?"
In 2019, Nessel raised concerns about funding for the program after the state wasn't able to pay some claims because the program's balance dropped from about $6.5 million since its 2016 creation to $323,800 in March 2019.
The dwindling balance prompted the Legislature to allocate $10 million into the fund and require Nessel to report the balance on a quarterly basis so it could be replenished if needed.
At the end of 2020, the balance in the fund was $3.9 million.
