For wrongly convicted, no state payout

Arkansas 1 of 20 lacking compensation law; officials point to other avenues

Arkansas is one of 20 states without a law providing compensation to people who are wrongfully convicted and imprisoned.

Earlier this month, the Arkansas Legislative Council Claims Review Subcommittee reversed a Claims Commission award of $460,000 to Gyronne Buckley, a former Clark County man who served 11 1/2 years in prison until new evidence was discovered and drug charges against him were dropped.

Buckley's attorney and some experts who have studied wrongful convictions say the state should do more for people who serve time unjustly. But the governor and attorney general say there are already avenues in place that can be used.

The commission has granted only one other wrongful conviction claim.

In 2006, it granted $200,000 to Rodney Bragg, who was released from prison in 2000 after a South Central Drug Task Force agent admitted to falsifying evidence against him.

In Bragg's and Buckley's cases, the men were prevented from suing the state because of sovereign immunity and sought awards through the Claims Commission, which was created to compensate those who are injured by the state.

Adele Bernhard, a distinguished adjunct and supervising attorney at the Post-Conviction Innocence Clinic at the New York Law School, said several states have adopted compensation statutes in recent years. In a report she published in 1999, Bernhard found that 17 jurisdictions had some form of compensation law.

But with growing attention to wrongful convictions through DNA evidence, Bernhard said, more states have decided to have uniform compensation laws, providing a specific monetary amount. Many of those laws require a person to "prove by a preponderance of the evidence that you're innocent," she said.

"Actually exonerating someone is a difficult, tedious task that takes years and years and years," Bernhard said.

According to the Innocence Project, which defends people who are wrongfully convicted, 30 states, the federal government and Washington, D.C., have compensation statutes on the books.

Rebecca Brown, the director of state policy reform at the Innocence Project, said those statutes can vary widely among the states. The Innocence Project supports states adopting the federal compensation guideline of $50,000 per year, as well as services, including tuition assistance and re-entry programs, to help people once they are released, she said.

Brown said Texas has one of the most comprehensive compensation laws, because it provides $80,000 per year spent in prison and $25,000 for every year on parole, as well as several other benefits, including tuition assistance and re-entry services. By comparison, Montana offers tuition aid for the wrongfully convicted but no compensation, and New Hampshire pays up to $20,000, regardless of the number of years served, Brown said.

Brown said she has not spoken with any legislators in Arkansas about adopting a compensation statute, but the group hopes all states eventually adopt one.

"I think the high bar really is there in order to overturn a conviction in the first place. ... It shouldn't be that difficult to get compensation," Brown said.

Mark Hampton, a Little Rock attorney who represented Buckley in the Claims Commission case, said people should be compensated when they are wronged by the state. He said only people who are actually innocent -- which he said Buckley is -- should be compensated and not people who are acquitted on technicalities.

Hampton said the commission made the right decision when it awarded claims filed by Bragg and Buckley.

"Finally the state of Arkansas is waking up and recognizing that some people are put in prison and they shouldn't be, and it's the fault of the state or the state's constitutional officials," Hampton said.

Buckley had never been convicted of a drug-related crime when he was arrested in January 1999 and charged with two counts of delivery of a controlled substance. He was convicted and sentenced to two consecutive life sentences, which the Arkansas Supreme Court reversed the next year because the trial court allowed improper testimony.

Buckley was resentenced to 56 years in prison, which the high court affirmed in 2002.

Buckley's attorneys filed several appeals, which led to the discovery of a police videotape that had been withheld from prosecutors and his defense team. It showed an informant who testified against Buckley contradicting his court testimony at least 38 times, according to Claims Commission filings.

In 2010, the state Supreme Court ordered a lower court to consider whether the tape should have been turned over to Buckley's attorneys.

Pulaski County Prosecuting Attorney Larry Jegley, who was appointed as a special prosecutor, made a motion to "nolle prosse," or drop, the charges against Buckley, who was released from prison Nov. 1, 2010.

Any new charges against Buckley would have had to be filed by Dec. 6, 2011, but a judge granted a motion to expunge the conviction and seal the case.

Buckley, 60, has been living with relatives in Arkadelphia and Houston since his release and is on disability, Hampton said.

Buckley's attorneys filed the claim in March 2013, and the commission awarded him $460,000 in December.

Decisions by the legislative subcommittee usually go to the full Arkansas Legislative Council for approval. But because the council does not meet this month, the subcommittee's decisions are final, said Marty Garrity, the director of the Bureau of Legislative Research.

Hampton said he is now considering filing a federal civil-rights lawsuit.

Democratic Attorney General Dustin McDaniel, who argued against the Buckley claim at the Claims Review Subcommittee meeting, has defended the existing avenues for obtaining compensation. He said in a statement that Buckley was convicted of the crimes he was charged with and that the conviction was thrown out on a "technicality."

"That does not make him innocent, nor should it provide for him an opportunity to be paid by the state. Strict adherence to the criminal process should not lead to a financial windfall for those who may, in fact, be guilty of a crime," McDaniel said. "Those who believe their civil rights are violated may, under current law, sue for damages in federal court. State claims can also be included in such a suit under current law."

Democratic Gov. Mike Beebe also expressed his support for the state's Claims Commission process in a statement.

"Arkansas already has a method, but it is discretionary with the Legislature as evidence[d] by the Buckley case. There is a remedy there, but it is still up to the Legislature," Beebe said.

Sen. Jeremy Hutchinson, the chairman of the Senate Judiciary Committee who also serves on the Claims Review Subcommittee, said he thinks it would be "impossible" to craft a bill that was narrow enough to include only people who are actually innocent "without it being overly generous to criminals."

"Some people, they should be [feeling] lucky and feeling blessed that they got acquitted on a technicality," the Little Rock Republican said.

Hutchinson said he did not know of any interest among legislators in drafting a bill to provide compensation to people who are wrongfully convicted.

"We have shown a willingness to compensate someone who was maliciously, wrongfully railroaded and was innocent. So we'll do that. But Mr. Buckley's case was different," Hutchinson said.

Metro on 07/28/2014

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