It's been two years since an unarmed man, 25-year-old Bijan Ghaisar, was shot and killed by police in Fairfax County. Kojo sits down with Bijan's family to discuss their quest for answers.
For two decades, Maryland has had a law on the books that allows innocent people who were wrongly incarcerated to seek monetary compensation from the state. But just three people have received payouts, with the last one happening in 2004.
Now, five exonerated Marylanders have filed claims for compensation with the Board of Public Works. But Governor Larry Hogan, one of the three members of the Board, says that the body “is not the appropriate venue” to decide financial damages for the pain and loss of unwarranted prison time.
How difficult is it for exonerees in Maryland — as well as D.C. and Virginia — to get compensation? And what process do state officials use to calculate the fiscal equivalent of a very human cost?
Produced by Margaret Barthel
KOJO NNAMDIFor 20 years, innocent people who have served time for crimes they didn't commit have been able to petition the state of Maryland for compensation for the time and opportunities they lost while in prison, but just three people have received a payout, the last one in 2004. Today, five exonerated Marylanders have claims pending in front of the Board of Public Works, which considers the claims. But Governor Larry Hogan says that the board, of which he is a member, isn't properly equipped to determine fair payments.
KOJO NNAMDIMeanwhile, in D.C. and Virginia, the process for seeking compensation looks completely different. In the District, it's sometimes presided over by a judge, and in Virginia, the General Assembly has to pass a bill to release the funds. What does it take for exonerees in Maryland, D.C., and Virginia to get paid, and how do you calculate what one person is owed for years behind bars?
KOJO NNAMDIJoining me in-studio to discuss this is Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project. Shawn Armbrust, thank you for joining us.
SHAWN ARMBRUSTThank you for having me, Kojo.
NNAMDIAlso with us is Jeffrey Gutman. He's a professor of clinical law at the George Washington University School of Law. Jeffrey Gutman, thank you for joining us.
JEFFREY GUTMANThank you for having me.
NNAMDIAnd Lamar Johnson is an exonerated Maryland man, now requesting compensation from the state. Lamar, thank you.
LAMAR JOHNSONThank you for having me.
NNAMDIShawn, there are currently five Marylanders who have been exonerated and are now seeking compensation from the state. Where do those five claims stand?
ARMBRUSTThey currently stand in limbo. All five of them have been waiting for collectively more than five years for the Board of Public Works to act on their claims. So, right now, they're just hoping that the governor and the Board of Public Works will do something for them to act on their claims.
NNAMDIWhat does it take to file a claim in the first place? Walk us through the process.
ARMBRUSTSo, there are two ways you can file a claim in Maryland. The first is receiving an absolute pardon from the governor, so that means that the governor has looked at your case and said, "This person is innocent." The second way is if you've won something called a writ of actual innocence, and if the prosecutor in the place where you are convicted has actually signed off and said yes, this person is innocent.
ARMBRUSTSo, each of the five people who has applied have had sign-off from the prosecutor, so these are all cases where everyone agrees that the person's innocent. The question is: how much are they going to receive in compensation?
NNAMDILamar Johnson, you're one of the five asking the state of Maryland for compensation. What were you wrongfully convicted of, and how long did you spend in prison?
JOHNSONI was wrongly convicted in 2005 for the murder of Carlos Sawyer. I did 13-and-a-half years in prison for a crime I didn't commit, before being fully exonerated.
NNAMDIThirteen-and-a-half years in prison, knowing you were there for no reason, that must take a toll. What kept you going?
JOHNSONMy faith in God. The Mid-Atlantic Innocence Project. My mom was fighting breast cancer. And the fact that I knew, deep down inside, I was innocent, so I couldn't give up.
NNAMDIShawn, the state of Maryland has not granted compensation of the kind that Lamar's asking for since the year 2004. Why do you think that is?
ARMBRUSTI really think it's a question of money right now. But, for a long time, the only way for exonerees to get compensated was to receive a pardon from the governor. And, in Maryland, regardless of party, receiving a pardon from the governor is very tall order and something people just can't get governors to do.
ARMBRUSTSo, we changed the statute back in 2017 to allow for people to get that certification from a prosecutor, thinking that that would break the logjam, and, unfortunately, it just hasn't.
NNAMDIJeffrey Gutman, looking at the number of exonerated people who get compensated under these kinds of statutes, how does Maryland compare to Virginia, the District and the nation?
GUTMANMaryland stands pretty far behind the Mid-Atlantic neighbors, as well as the nation, as a whole. Nationally, it's not a great model, but 35 percent of those who are incarcerated wrongfully ultimately receive state compensation. In Maryland, it's been only three out of 33. In Virginia, it's about 50 percent, which is significantly better. So, Maryland stands well behind its neighbors.
NNAMDIHow about the District?
GUTMANIn the District of Columbia, there have been 17 exonerations, according to the National Registry of Exonerations, and, of those, four have received compensation.
NNAMDIHow big are these monetary awards, usually? Are states spending a lot of money on these claims?
GUTMANWell, it depends on the state. States that have uncapped statutes tend to compensate more. The national average is almost 70,000 per year, among those states that have statutes. Maryland's average is significantly less than that, about 47,000 for those three gentlemen who were previously exonerated and ultimately paid.
NNAMDIShawn Armbrust, what do you think is the appropriate compensation for the five current cases in Maryland?
ARMBRUSTWell, so, the lawyers for four of the five men have gotten together and proposed a kind of uniform standard for those four men to the Board of Public Works. And what they and we have asked for is $100,000 apiece, which is in line with what Texas pays exonerees. And we think -- that is less than some of them asked for, more than some of them asked for, but we think that would be a fair compensation. You know, you can never give back the years lost in prison for something someone didn't do, but that would at least give them sort of a fair start.
NNAMDIJeffrey, how do Virginia and D.C. calculate compensation in these kinds of cases?
GUTMANWell, in the District of Columbia, we have a new statute. But when you go before a judge, it's uncapped, and it's the judge that decides. So, the two benchmarks we have in the district are the cases of Kirk Odom and Santae Tribble. And, in those cases, the Superior Court judge had to make a profoundly and philosophically difficult decision: how much is a life behind bars worth?
GUTMANAnd, in those cases, two judges on the Superior Court concluded that it was worth about $1,000 per day, or $400,000 per year, in one context. Also awarded monetary compensation for time on parole, medical expenses, and, in one case, lost wages, as well.
GUTMANIn Virginia, the legislature has established the metric by which compensation is paid -- it's 90 percent of the per capita income of the average person in Virginia. But that can be doubled if there's proof of intentional fabrication or of a Brady violation.
NNAMDIShawn, in Maryland, claims from exonerees go to the Board of Public Works, which is supposed to adjudicate them, but Governor Larry Hogan, who is one of the three people who sits on that board, said last week that he thinks the board is not best equipped to tackle the challenge of determining the appropriate financial compensation, and after all, that's not easy to quantify. What's your response to that?
ARMBRUSTI mean, he's right that it is very difficult to quantify. That's why we've proposed a uniform standard for the men who are currently seeking compensation, and that's why we're going to be proposing legislation this session that would establish a uniform amount of compensation.
ARMBRUSTIn terms of where the compensation should come from and who should decide, you know, it's a tricky question in Maryland. We have looked into whether administrative law judges would be the appropriate place. We're not sure that it would be. You know, but, at the end of the day, we don't care who is deciding on the compensation, as long as it's fair, as long as it's uniform, and as long as the decisions are actually being made.
NNAMDII know at least one person who's been exonerated of a crime in Maryland, and he is on the phone right now. Walter Lomax, thank you for joining us. You're on the air. Go ahead, please.
WALTER LOMAXYeah, hi, Kojo. It's good to be on here again.
NNAMDIYes, Walter Lomax has been a guest on this broadcast before. But go ahead. What are your concerns here, Walter?
LOMAXWell, it seems to be a little disingenuous for this administration to allege that the Board of Public Works is not the appropriate venue to award compensation, specifically because, one, there's a procedure to do it, and it has been done before. And when the task force was convened to decide how best to move forward and the recommendation was given to legislators as to how best to proceed, but during the task force hearing, and I've sat on the task force, and this administration appointed the commissioner, the care-person of the commission, as well as other members.
LOMAXAnd not once during any of those meetings was it ever suggested that the Board of Public Works, would not be the appropriate venue to award compensation. It seems to be a little disingenuous at this late hour, when they are being called to task as to why they haven't acted on these petitions, that this is an excuse that's being given.
LOMAXAnd I think it's unconscionable -- I'm wanting to say hello to Lamar that's there with you, right, because he was incarcerated for a crime that he didn't commit. No one can even remotely fathom what that experience has been, and it seems that the people who have had that experience is being victimized all over again. In fact, suffering worse consequences than what they...
NNAMDI(overlapping) Walter, can you briefly remind us and our listeners how long you were incarcerated, for what, and when you were exonerated?
LOMAXYeah, I was incarcerated for almost 40 years, from 1967 to 2006.
NNAMDIAnd when were you exonerated?
NNAMDIShawn, in Maryland, claims from exonerees, as we mentioned, go to the Board of Public Works. In a statement, a spokesperson for Governor Hogan told us, quoting here, "Governor Hogan agrees that the pain and indignities experienced by innocent individuals for crimes they did not commit is unimaginable, and they deserve to be justly compensated as they work to rebuild their lives.
NNAMDIWe are committed to working through an appropriate third party, such as administrative law judges, that can properly handle these cases and make determinations about compensation. Our office recently connected with the Innocence Project, and we met with lawyers for the petitioners. Today, we look forward to working together in good faith." That sounds promising, Shawn. Do you see a way forward, here?
ARMBRUSTWell, what I hope the way forward is, I hope it involves the governor dropping his opposition and dropping the roadblocks to compensating these five men now. There's no reason for delay, there's no more excuse. And I think the second piece of that is that the legislature should act to clarify the statute. And we hope that'll happen this session.
ARMBRUSTThe last time around, when the legislature had a chance to act, the governor delayed appointing someone to run the task force Mr. Lomax was talking about. The task force only met once. The bill that was proposed really didn't receive very serious consideration in the General Assembly. And we hope all of those things will change in the upcoming legislative session.
NNAMDIJeffrey, some of the governor's concerns about being able to fairly and accurately work out compensation for exonerees, what do you make of the solution that his office has raised, asking administrative judges to consider the cases?
GUTMANStates through the United States have approached this in three different ways. One is judicial, one is administrative, and one is going through a board of claims process. And I think the right way to do it is to align the statutory compensatory metric with the entity that's making the decision.
GUTMANSo, so long as Maryland remains an uncapped statute and there's discretion as to how to decide how much an exonerated person should get, going forward, it seems to me that the appropriate source would be a quarter, or the Board of Claims rather, than the Board of Public Works.
GUTMANBut we have these five gentlemen here who are in immediate need of support, and as Mr. Lomax properly said, that is where the legislature has decided this function should lie. And so long as it's there, any further delay is unconscionable, as Mr. Lomax pointed out.
NNAMDILamar, what do you think are the most important parts of your experience in prison, and the experience of people like you who've been exonerated that need to be taken into account?
JOHNSONFirst off, being in prison for a crime you didn't commit is very frustrating. At times, it's depressing, because you're basically fighting for your liberty, your life. And then once you're finally exonerated and you're put back out in society, it's like me and the other exonerees, it's like we've been set up to fail, because put us back out here with no job training, no ID, no housing.
NNAMDIWhat would receiving money and damages from the state mean for your life now?
JOHNSONIt would mean a lot to me. I'd be able to live my life to my fullest potential. I'd be able to start my own business. I'd be able to donate to the Mid-Atlantic Innocence Project, help other exonerees get their freedom. I'd be able to do a lot of good.
NNAMDIHow has your transition back into life outside been over the past two years?
JOHNSONIt's been up and down. It's been different challenges every day. Sometimes I wake up, I feel depressed. I'm happy, I thank God I'm home every day, but sometimes, I just feel depressed.
NNAMDIHave you been able to find a job?
JOHNSONThank God, thanks to the Mid-Atlantic Innocence Project and (inaudible) Ocean Realty, yes.
NNAMDIBut there's still a lot more. Shawn, in the absence of action from the administration, you've been pushing for legislative action in the Maryland General Assembly. How would you like to see the Maryland law change?
ARMBRUSTWell, I think this -- the problems we've experienced with the current law make it clear that doing something more uniform would benefit exonerees, because they'd be able to collect more quickly and they'd be able to collect anything at all, really. And so what we're looking for is a uniform amount per year.
ARMBRUSTWe are looking for a requirement that whatever entity is making the decisions, presumably the Board of Public Works, but it could be something else, that whatever that entity is has to act within a certain amount of time. And we think that will help make sure that future exonerees don't have to sit and wait to start their lives again, just like these men have.
NNAMDIJeffrey Gutman, it's clear that people like Lamar Johnson and Walter Lomax suffered pain and suffering while incarcerated, suffering pain and depression even after they have been released. You've actually been part of a judicial proceeding in D.C., when an exonerated person was trying to get the District to compensate him. What kinds of factors were considered in that decision?
GUTMANIn the Odom and Tribble cases, the judges in those two cases considered a range of factors and characteristics that were relevant to the compensatory metric. That included their work history, the nature of the suffering they experienced in prison, how their life has been after they got out, what psychological and physical damage they experienced while they were incarcerated.
GUTMANThey did a very sensitive and careful analysis of a range of facts, and arrived at the metric that I described before. And, in that regard, I think Mr. Johnson makes an excellent point, that if the Maryland legislature changes the statute, we shouldn’t only focus on the monetary metric, but we should focus on making sure that these exonerees get non-monetary assistance as quickly as possible.
GUTMANHousing assistance, vocational training, educational benefits, access to medical care, psychological counseling are extremely important to help these gentlemen get their lives in order, so that they can lead dignified lives going forward, which is exactly what Mr. Johnson wants to do.
NNAMDIWalter Lomax, we only have about 30 seconds left, but you get the last word on this. What do you think?
LOMAXYeah, I just hope that they come up with a process so that what we're going through, folk that will come after us won't have to deal with that. It's very important that there be a clear-cut path that once an individual has prevailed, that the Board of Public Works or some other entity timely reward them with compensation, so that they can go on with their life.
NNAMDIThank you very much for joining us, Walter Lomax. We got a tweet from Jamie, who said: I think about the Central Park Five. How do you compensate someone for the years, relationships, and dreams that are lost due to a system that time and time again has failed people of color? People in government need to be held accountable. I'm afraid that's all the time we have. Shawn Armbrust is executive director of the Mid-Atlantic Innocence Project. Thank you for joining us.
ARMBRUSTThank you, Kojo.
NNAMDIJeffrey Gutman is a professor of clinical law at the George Washington University Law School. Thank you for joining us.
GUTMANThank you for having me.
NNAMDILamar Johnson is an exonerated Maryland man, now requesting compensation from the state. Thank you for joining us, good luck to you.
JOHNSONThank you, Kojo.
NNAMDIThis conversation about compensation for exonerees was produced by Margaret Barthel. Our discussion of the Second Look Act was produced by Cydney Grannan. Coming up tomorrow, after months of legal turmoil, the first data on who MPD stops and why has been released.
NNAMDIChief Peter Newsham will be here to explain. Plus, we'll take a look at the local legacy of soul and jazz artist Gil Scott-Heron and the D.C. reggae band giving his music new life, and their upcoming album. That all starts tomorrow, at noon. Until then, thank you for listening. I'm Kojo Nnamdi.
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