Ohio Governor Kasich has submitted a bill to the Ohio General Assembly that would raise the standard of standard of proof for the wrongfully convicted to obtain compensation. Under this new scheme, an exoneree would have to prove in a civil suit that she is innocent not by the current standard, which is “a preponderance of the evidence,” but rather, by the standard of “clear and convincing evidence.”
The Ohio Innocence Project will work hard to keep this provision from becoming law.
First, I cannot understand why the wrongful convicted are being singled out for special treatment. It is a fundamental principle of law going back for centuries that in civil cases for monetary damages, the burden of proof is a preponderance of evidence (51% or “more likely than not”). If the State of Ohio harms someone by breaching a contract, or causes them physical injury in an accident with a State vehicle, the victims need only prove liability and damages by a preponderance. But under this new law, if a person like OIP exoneree Raymond Towler loses 29 years of his life to a wrongful conviction, he has a higher mountain to climb for relief than others hurt by the State’s malfeasance.
Most would agree that it’s hard to imagine many things more damaging than being wrongfully convicted and sent to prison during the most important and formative years of one’s life. Wrongful imprisonment usually occurs at a time when one does integral things like learns job skills and a trade, gets married, and has children. Why are exoneree’s being singled out for disparate treatment?
Second, if someone enters into a business contract with the State of Ohio and Ohio then breaches the contract, the victim must only proof the facts surrounding that breach to obtain relief. But an exoneree, in contrast, naturally has a higher burden of proof than the victim in this generic hypothetical. That is because proving one’s innocence is the equivalent of proving a negative. It’s not merely proving that “the car hit me,” or “the State didn’t deliver the goods on time,” but rather, that “I didn’t do it.” Even a child knows that proving a negative is extremely difficult. That is why out of the 15 Ohioans the OIP has freed to date, only 3 have obtained state compensation (see infographic here). Raising the burden on exonerees to prove a negative by “clear and convincing” evidence would be to nearly eviscerate the compensation statute altogether.
Perhaps the State of Ohio is taking this action because 3 of OIP’s exonerees in recent years have obtained state compensation, and each has obtained more than $1 million. If this is hurting state coffers, then perhaps we should look to continue improving the criminal justice system to reduce wrongful convictions in the first instance, and to more expediently resolve these cases when they are brought to the attention of State officials. In 2 of the 3 cases in which OIP’s exonerees have obtained large awards from the State, the State fought the exoneration for extended periods of time while the exoneree remained locked up, increasing the eventual payout to the exoneree-victim. The recent settlements should be a deterrent against future wrongful convictions, and a reminder to start handling these cases in a more expedient fashion–not an excuse to make the hardship fall even more on the backs of the exoneree-victims.