The National Registry of Exonerations has registered over 2,500 exonerations of people wrongfully convicted in the United States. Many different factors can play into a wrongful conviction: eyewitness misidentification is a leading factor, as are constitutional violations such as official misconduct. When there is such a constitutional violation, a wrongfully convicted person theoretically has the option to bring a civil rights lawsuit. Such civil rights lawsuits can not only be embarrassing for the officials involved, they can be quite expensive.  Exonerations have increased sharply in recent decades, partly due to the use of DNA testing to clear convicted people’s names. Civil rights suits resulting from these exonerations can be costly for local governments, like Gage County, NE, which had to raise property taxes to pay a $28 million judgment after wrongfully convicting six people for the murder of 68-year-old Helen Wilson. Likewise, Baltimore taxpayers have had to pay out millions to exonerated individuals due to misconduct by law enforcement. So, in practice, prosecutors sometimes use plea deals force people behind wrongfully held bars to make an impossible choice between leaving prison and getting compensation for civil rights violations by state actors in their cases.

When innocent people are exonerated, they generally have two options to be compensated for their time in prison: exoneration statutes or civil rights claims. Exoneration statutes provide a remedy no matter the reason the person was wrongfully incarcerated, but are often limited by caps on the amount a person may be awarded per year in prison or on the total award a person can receive. Though they limit the amount of compensation a person can get, these statutes are a good option for people who do not have civil rights claims despite their wrongful convictions or who would have difficulty proving such claims. However, these statutes are not available to everyone, since only 35 states and D.C. have enacted some form of an exoneration statute.

In the other 15 states, the only chance that exonerated individuals have to be compensated for time spent in prison is to bring a federal civil rights claim alleging some form of unconstitutional conduct by the state. A civil rights claim allows for the possibility of greater compensation than most exoneration statutes, but proving such a claim is a high bar that not everyone can meet. First, not every wrongful conviction involves a constitutional violation.  Second, the Supreme Court held in Heck v. Humphrey that a wrongfully convicted person bringing a civil rights claim must have had their conviction reversed or otherwise declared invalid. When a judge orders a new trial for a defendant, the prosecution has discretion over whether to retry the case. As a result, prosecutors can leverage the threat of litigating a new trial in order to get defendants to sign plea agreements admitting guilt to some lesser charge and allowing them to leave prison immediately. Once defendants have pled guilty, if they try to bring a civil rights lawsuit, the prosecution can argue that they are not innocent because they have admitted guilt.

For example, Jimmy Dennis was wrongfully convicted of murder and sentenced to death in 1991. In 2016, an appellate court said he should be given a new trial or let out of prison. Instead, prosecutors offered him a plea deal: if he pled no-contest to a third degree murder charge, he could get out of prison immediately. If he didn’t accept the plea deal, he would remain in prison for a new trial, which could take years. However, accepting the plea and admitting guilt would mean he likely would not be able to bring a civil rights lawsuit for official misconduct in his case. After twenty-five years on death row, Mr. Dennis took the plea.

James Owens refused a deal similar to the one offered to Jimmy Dennis: after two decades in prison for a rape and murder, DNA evidence showed that semen found on the scene was not his, and a judge ordered a new trial. However, the prosecution insisted they had evidence to win at a new trial, and offered only an Alford plea – an unusual plea bargain in which someone pleads legally guilty but is allowed to claim innocence for the record nonetheless. Mr. Owens refused the plea, and spent 16 more months in prison awaiting his new trial, only to have the prosecution stand up in front of the judge at the outset of the trial and say “The state declines to prosecute.” As a result, Mr. Owens was able to bring a civil rights claim and settle with the city of Baltimore for $9 million.

Mr. Dennis faces a tougher road to getting restitution, though a recent ruling gives reason for hope. Judge Eduardo C. Robreno ruled that Mr. Dennis’s plea was a separate conviction from his first conviction, which had been found invalid. Thus, Mr. Dennis’s civil rights claims around the injustices in his first conviction have been allowed to go forward. It remains to be seen whether appellate courts will uphold this ruling.

While this judge’s ruling provides a potential template for evading these kinds of pleas, reforms should be made to prevent prosecutors from putting innocent people in this position in the first place. People wrongfully convicted, especially those imprisoned due to official misconduct, should not be forced to choose between their freedom and compensation for the years or decades they have endured in prison. Civil rights lawsuits are necessary not just because they help mitigate the harm done to a citizen, but because they uncover and punish official misconduct. Citizens are safer from state wrongdoing when victims of abuse are able to aggressively litigate their claims.

There are several ways to discourage prosecutors from coercing innocent people into releasing their civil rights claims.  Judges could much more carefully scrutinize plea deals offered to incarcerated people who have been granted new trials. People who have been wrongfully convicted once are likely to view taking a chance on a new trial as incredibly risky since they have been failed by the system before; for them, a plea deal with no chance of being retried may be appear a much safer option. Not only does this make suing on civil rights grounds much harder (or impossible) for them, it delegitimizes their claims of innocence. To reduce empty threats of new trials, prosecutors should have to make a substantial evidentiary showing early on if they claim that they will pursue prosecution a second time. This might have helped avoid the situation in Mr. Owens’ case. He waited in prison for nearly an extra year and a half because prosecutors said they would pursue a second conviction, but when they actually got to trial, they declined to prosecute.  Furthermore, states should guarantee compensation for people who are exonerated, regardless of whether or not they can prove a civil rights violation in their case.

When the criminal legal system deprives people of their liberty, prosecutors should rush to correct their mistakes and to make reparations. They should not force people to decide between leaving prison immediately and vindicating legitimate legal claims they have.