Growing list of exonerated prisoners stretching compensation funds to the limit

Richard Phillips was just allocated $1.5 million for three decades that he wrongfully spent in prison for a murder that he didn’t commit, but he’s still going to have to wait a while to see that money.

The issue isn’t with his case, but with the money itself: the fund that pays out exoneration compensations in Michigan is nearly empty.

Michigan’s Wrongful Imprisonment Compensation Act (WICA) went into effect in 2017, and the state has already spent the vast majority of the $6.5 million appropriated to the fund.

The fund was set to be refilled with an additional $10 million but that was the target of the state’s new governor’s first line-item veto on a technicality -- though the governor has expressed her support for approving the $10 million appropriation in a separate bill, which those involved believe will come in the next few weeks.

But for people close to the exonorees that have not only have spent decades unjustifiably behind bars, but continue to have to fight for compensation, it’s a slap in the face.

“To have to go through and re-litigate their innocence again, and then to find out there's no money to pay them once they're successful in re-litigating their innocence again is ludicrous,” said Gabi Silver, Phillips’ attorney.

“People are playing political ping pong with whether the fund should be made available. It’s really, really unfair,” she said.

The problem that the Wolverine State seems to have run into is one that experts say state legislators nationwide should expect to account for, as more and more states add exoneration compensation laws to their books.

Gov. Gretchen Whitmer noted in her press release announcing her line-item veto on May 10 that she allocated $10 million in budgets for both fiscal year 2019 and 2020 budgets.

The release notes that there are 39 claims awaiting payout, the total of which would add up to $24.1 million.

Dan Olsen, the spokesperson for Michigan's Attorney General Dana Nessel, told ABC News that the appropriation of $10 million through the 2020 budget "to take effect on October 1, if not sooner through a supplemental appropriation."

"It’s important we continue to fulfill our obligation to the men and women who were wrongfully imprisoned for crimes they did not commit and we look forward to working with the Legislature to make that happen," Olsen said in a statement.

Earlier this year, there were 33 states that agreed to pay or compensate –- at varying levels -- those who had been wrongfully imprisoned.

And then just weeks ago, Indiana passed their own law, and advocates expect that Rhode Island will join the list in the coming weeks, bringing the national total to 35 states with some form of compensation.

Those compensation levels vary greatly, however, with New York having no limit to how much someone can be compensated or California -- which allows for $140 per day of wrongful imprisonment with a cap of $2 million.

On the opposite end, New Hampshire has a $20,000 cap. Wisconsin allows for $5,000 per year wrongly imprisoned but has a cap at $25,000, though a review board has the power to petition for extra funds.

An annual compensation of $50,000 per wrongfully imprisoned year appears to be roughly in the middle of U.S. states' compensation spectrum, and that’s what Phillips is slated to be paid. Since he spent 30 years in prison for first degree murder for which he was later exonerated, Nessel announced on May 17 that her office approved a $1.5 million payout for Phillips.

Rebecca Brown, a director of policy at the Innocence Project, said that when a state first creates a compensation law, they will likely be inundated with any number of people who had been previously cleared of their wrongful convictions in the past, meaning that the payouts will add up in the first few years.

“The first couple of years that a state provides compensation, the fiscal outlay will be more substantial, but in future years, that fiscal impact is greatly reduced,” Brown said.

Jeff Gutman, a professor of clinical law at the George Washington University Law School who's studied exoneration compensation, said that “different states do this differently.”

“In some states, speaking generally, the state will purchase an annuity for the individual,” Gutman said, and that annuity is tasked with paying the individual a set amount for however many years until their total sum is reached.

In others, portions of the budget are allocated for compensations, or individual agencies or departments –- say, the state’s criminal justice division -– are responsible for paying the claims, and therefore have that money assigned to their budget. Gutman cited California and Virginia as examples where individual appropriations mean that the legislature votes on bills that specifically state the name of the exonorees.

“It always comes back to the state legislature," Gutman said. "The state always has to appropriate the money."

Marvin Zalman, a Wayne State University criminal justice professor, said that while the details of how newer exoneration compensation laws are ironed out, they should not be addressed in a silo -- as any factors that contribute to the wrongful convictions in the first place should also be addressed.

“We should be thinking about these laws," Zalman said. "I certainly don’t want my tax money going into compensating people for wrongs if the wrongs can’t be eliminated."

“I would hope that states that pass these compensation laws then say ‘we want to make the compensation rare by improving the rest of the system,’” he said.

For Silver, her biggest concern right now is making sure that her client gets what is owed to him.

She said that Phillips is “73 but a very, very young 73,” and she wants to make sure he can be comfortable in the rest of his life.

“While I think that the money is wholly inadequate to compensate for taking away most of someone’s life, I think it will enable him to live comfortably, to get a house, a car, medical treatment, travel a little bit, paint,” she said, referencing a hobby he took up while behind bars. Phillips has since been selling his art to sustain him while awaiting his compensation payout.

“He's happy. He's enjoying life right now,” Silver said. “While he likes to say that he’s not really bitter about what happened to him, I always say ‘I think you are bitter but you choose to live your life so that you don’t give in to the bitterness.”