Will legislators ever help the wrongly convicted?

(Opinion) – Many Wyoming lawmakers say people who are wrongly convicted, and later found to be innocent, are entitled to compensation from the state for the years taken away from them.

For some, including Sen. Floyd Esquibel (D-Cheyenne), the idea that the state needs to make amends for its judicial mistakes is a heartfelt sentiment. Esquibel sponsored Senate File 51, which would have approved up to $500,000 in compensation for the convicted whose “actual innocence” has been determined by court action.

The legislation, which would have joined Wyoming with 30 other states providing such compensation, was shot down in flames with only six votes in favor. When it mattered, the 24 other senators abandoned any support they had for people that the state wrongfully put in prison.

The Legislature began looking at this issue in 2014 after DNA evidence exonerated Andrew Johnson, then 63, who had been confined to the State Penitentiary in Rawlins for 24 years for a 1989 rape he didn’t commit. Initially it looked like the effort two years ago would be successful, and Johnson would finally be able to afford a fresh start.

The House and Senate both passed the 2014 bill, but it died in a conference committee when the two chambers couldn’t agree on changes made to the measure. It was essentially killed when Rep. Bob Nicholas (R-Cheyenne) tried to add a provision requiring proof of innocence — a mucher higher bar than official judicial exoneration of a former inmate.

Flash forward to this year’s budget session and SF 51. It won introduction by a 25-5 vote. Smooth sailing ahead? More like what happened to the Titanic. Opponents came up with several arguments to cast doubt that the bill would be fair. None of these reasons were valid, but the preponderance of them was apparently enough to convince the Senate’s GOP majority that the bill was a disaster. For the trauma Johnson experienced, and and the tragedy of others wrongfully convicted, it was yet another miscarriage of justice.

The beginning of the campaign to kill the innocence bill came when the Senate Judiciary Committee considered it. Panel member Sen. Larry Hicks (R-Baggs) offered an appalling assessment of the bill’s chances when he said it could have a better chance at eventual passage “now that there’s water under the bridge.”

Johnson’s near quarter-century unjustly behind bars is just water under the bridge to Hicks? In covering the Legislature at various times since the mid-1970s, this was one of the most callous, shameful statements I’ve ever heard a lawmaker express. This is the same guy who spoke in favor of a bill to select an official state shrub earlier the same day he voted against SF 51. Hicks and Sen. Dave Kinskey (R-Sheridan) actually suggested the issue be studied until the next legislative session, even though the bill has already been thoroughly vetted in an interim study by both prosecutors and lawyers who specialize in wrongful conviction cases.

The floor debate had a modicum of sympathy for Johnson, but the arguments against providing compensation were completely hollow. Curt Meier (R-LaGrange) expressed concern that a provision of the bill would change the standard for obtaining a new trial on the grounds of prisoner clearance by non-DNA evidence. He said using “a reasonable probability” was less strict than the current language for DNA cases, “clear and convincing evidence.” “The proposed standard is so low, you’re going to wind up with 100 new trials a year,” Meier predicted. “That’s a standard I can’t live with.”

It may not be good enough for Sen. Meier, but it is for the vast majority of states. Esquibel pointed out that reasonable probability is considered a tougher standard, and that it would probably only be used in a handful of instances in which someone sought a new trial.

“This isn’t like someone getting a new trial because he says, ‘I didn’t do it,'” the sponsor said. “This is specific, newly discovered [non-DNA] evidence.”

Hicks told his colleagues the only person who testified in favor of the bill was “an advocacy group” whose unwanted intrusion into the lawmaking process “pretty much guts the bill.” He was referring to Aaron Lyttle, an attorney with the Rocky Mountain Innocence Center, who offered several excellent amendments that strengthened the bill during its Judiciary Committee hearing.

But Hicks is on to something here. Can you imagine what the Legislature would look like if a lobbyists were able to testify in favor of a bills and (gasp!) suggest ways they could be improved? Chaos! Unethical, rampant behavior that would shake the very foundation of the legislative branch.

Wait a minute … perhaps the gentleman representing Carbon and Albany counties was overstating the effects of such infringement. I’ve heard that there isn’t a lobbyist who hasn’t testified on a bill. In fact, some come to committee meetings armed with drafts or even fully written bills that a lawmaker merely has to put his or her name on.

Why, there are rumors that one conservative group, the American Legislative Exchange Committee, not only hands out proposed bills to state legislators, it even provides model bills that its members can push in state capitols around the entire country. Isn’t that socialism?

Boy, I’m glad we cleared that up. Hicks’s dire warnings don’t seem to contain anything resembling reality.

But other stumbling blocks existed. Senate President Phil Nicholas (R-Laramie) noted SF 51 “is intended and will only apply to a fairly narrow group.” We should hope so, because if it affected a wider group, it would mean there are a lot more wrongfully convicted people in prison that we realize.

Nicholas seemed mostly concerned that there was nothing in the bill to prevent someone who gets money from Wyoming from also filing a federal civil rights complaint against the state. He suggested anyone who is given money by the state under the bill should waive the right to later sue the state in federal court.

But Esquibel explained that a person cannot be forced to waive his or her constitutional rights. If the state attempted to do so, he added, it would soon be “embroiled in a number of civil rights suits” that Wyoming would likely lose.

An even bigger complaint against the bill was offered by several members of the Joint Appropriations Committee, which held a quick hearing on it during a break in floor action. The panel voted 3-2 in favor of the bill, but JAC Co-Chairman Tony Ross (R-Cheyenne) spoke against it because SF 51 doesn’t have a firm appropriation. His committee would have to consider each application for compensation as it came up. The bill would have put $100,000 into the budget as a placeholder for whenever it might be needed for post-conviction relief. The measure would also provide smaller amounts on a yearly basis, up to $500,000, to people whose years were literally stolen by the state.

It’s only my hypothesis, but I think the vote owed less to the problems alleged above and more to legislators’ fears that they could be giving money to someone who is guilty, despite what the judicial branch decided.

And as we all know in Wyoming, the belief that someone might get something for nothing drives a lot of social services bills.

In this case, what the wrongly convicted would receive is far from “for nothing,” or even water under the bridge. It can be decades of their lives, as it was for Johnson.

It’s an outrage, but the Senate’s rejection of SF 51 was as predictable as it was uncaring. Beware of lawmakers who say they want to help people like Johnson, but act instead on irrational fears that those declared “actually innocent” are criminals.

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