Compensating Those Wrongly Imprisoned -- The Texas Approach is Better Than Virginia's

Criminal defense attorneys have long questioned the reliability of eyewitness identifications. Where semen, blood or skin is left at a crime scene, DNA evidence can either confirm or eliminate the proof against the defendant. Sometimes innocent people have to wait years in prison until DNA evidence can establsih their innocence. In many cases, they are entitled to be compensated by the Commonwealth for their time spent behind bars.

By statute, Virginia will reimburse innocent persons who pleaded "not guilty" at trial and have served time in prison for certain felonies. However, the maximimum amount of compensation is far less than other states.

Only Texas has executed more persons than Virginia since 1972, yet a Texas statute providing for restitution of persons wrongly convicted pays $80,000 per year of incarceration, while Virginia's statute only allows an amount equal to 90 percent of the Virginia per capita personal income as reported by the Bureau of Economic Analysis of the United States Department of Commerce for each year, or portion thereof, of incarceration up to 20 years. In other words, for a person wrongly convicted in Virginia to be compensated on the same basis as a person wrongfully convicted and imprisoned in Texas, the per capita income of Virginians (that is, the average income of each Virginian) would have to be almost $90,000 per year.

Moreover, only a portion of that amount -- one fifth (20%) -- is paid immediately. The remaining 80% is paid in monthly installments for a period certain of 25 years commencing no later than one year after the effective date of the appropriation. The annuity from which the monthly payments are made may not be sold, discounted, or used as securitization for loans and mortgages by the person awarded compensation.