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Compensating the Wrongfully Imprisoned

By Noah C. Hagan posted 07-15-2019 12:41


In 2016, the Michigan Legislature enacted the Wrongful Imprisonment Compensation Act (WICA), 2016 PA 343, allowing individuals convicted and imprisoned “for 1 or more crimes that he or she did not commit” to seek compensation to the tune of $50,000 for each year of imprisonment. MCL 691.1751-.1757. ICLE contributor Dave Moran was involved in WICA’s drafting process, but he states that the act has “not worked as it was intended.” One of his critiques—that sufficient money had not been allocated to actually pay compensation—has been rectified in 2019 PA 10, which allocated $10 million to the compensation fund. Before this allocation, several claims remained unpaid, including that of Richard Phillips, who spent 46 years in prison.

In addition to compensation issues, claimants also face statutory hurdles. WICA requires claimants to prove three things by clear and convincing evidence:

  1. a conviction and imprisonment
  2. that the conviction was reversed or vacated, the charges were dismissed, or a retrial resulted in a not guilty verdict
  3. new evidence demonstrating that the claimant did not perpetrate the crime, resulting in the reversal or vacation of the charges and the dismissal of the charges or a finding of not guilty

MCL 691.1755(1). WICA defines new evidence as

any evidence that was not presented in the proceedings leading to plaintiff's conviction, including new testimony, expert interpretation, the results of DNA testing, or other test results relating to evidence that was presented in the proceedings leading to plaintiff's conviction. New evidence does not include a recantation by a witness unless there is other evidence to support the recantation or unless the prosecuting attorney for the county in which the plaintiff was convicted or, if the department of attorney general prosecuted the case, the attorney general agrees that the recantation constitutes new evidence without other evidence to support the recantation.

MCL 691.1752(b). In Tomasik v State, the Michigan Court of Appeals held that the claimant did not meet his burden as to the new evidence requirement, despite the fact that his retrial included 22 new witnesses and exhibits that had not been presented earlier. The court of appeals opinion focused on the Michigan Supreme Court’s reversal of his conviction because of improperly introduced evidence, not because of new evidence. An application for leave is pending in the supreme court.