Jay Kuten: Consider compensation for wrongful convictions

David Bain

LAST week, a North Carolina State Commission awarded $750,000 each as compensation to two half-brothers, Henry Lee McCollum, 51, and Leon Brown, 47, who spent three decades in prison - much of it on death row.

Both men are developmentally disabled, their IQs in the low 50s. The pair - aged 19 and 15 at the time - were convicted solely on the basis of coerced confessions they later recanted, according to the judge who freed them after DNA testing, long-resisted by authorities, proved them not guilty. After hiring a lawyer who argued that "government and law enforcement officials of Robeson County, NC, had obtained their convictions through 'fraud, perjury, coercion, the wilful failure or refusal to investigate exculpatory evidence'", the two men were awarded $750,000 each.

You may think that a generous amount, but it is less than $15,000 per year in prison. After contingent attorney's fees, each will have $500,000. Considering their lack of job skills - never mind the added burden of prison on mental deficiency - they will be lucky to retain the full amount and have roughly $25,000 a year for the expected lifespan of African-Americans like them.

Does any of that sound remotely familiar? A pattern of over-aggressive and ethically challengeable prosecutorial and/or police misconduct led to a wrongful conviction in which a person lost decades of his life and experienced the severe trauma of imprisonment for an act he did not commit.

Here in New Zealand you can fill in the names of Teina Pora, or David Bain or Peter Ellis - and, I submit, Scott Watson.

These cases raise many questions. How is it that prosecutorial misconduct is rarely if ever called to account in any legally significant manner? And, for the wrongfully convicted, how can we fairly compensate someone whose life has been so severely damaged?

How much is time in prison worth, considering not only the issue of endurance (the day-to-day limitation and degradation of prison life) but the fact of injustice?

In the David Bain case, we have seen the effort by former Minister Judith Collins to safeguard our common treasury by enacting a standard for compensation that is beyond possibility. Collins demanded that Bain prove he is innocent. While that sounds plausible, it is actually impossible. When you enter a courtroom as a defendant you are granted a presumption of innocence. It is a presumption often honoured in the breach. If the evidence against you does not warrant conviction, you are declared not guilty. That is it.

You are never declared innocent and that is in concert with the legal reality and the social one in which your neighbours are unlikely to hold you in the same esteem as before your trial.

Collins, however, insisted that Bain establish for her benefit a new reality - something that was once a presumption but which can never be demonstrated as fact.

Prison time is not subject to quantification. The rare human being - Nelson Mandela - retains his dignity and even grows in stature. Most people are reduced, if only because of the cognitive assault on their functioning.

For our human brains to function optimally, they need, in adult life, the continuing practice of making informed decisions and the challenge of coping with expectable social relationships. That disappears in the authoritarian hierarchy that is prison.

Then there's the Rip van Winkle effect - disorganisation coming out of prison to a new and frightening world. It is in our name that people have been wrongfully convicted and deprived of their fundamental freedom, their presumption of innocence.

One fair standard for compensation would consider that the worth of a year's incarceration be equivalent to the compensation of our own highest representatives in government. In other words, the amount the not guilty might have earned had they been Members of Parliament during the same time period. While our parliamentarians cannot claim innocence except as presumption, the stress of their work is hardly comparable to that of being an inmate, especially one wrongfully convicted.

Jay Kuten is an American-trained forensic psychiatrist who emigrated to New Zealand for the fly fishing. He spent 40 years comforting the afflicted and intends to spend the rest afflicting the comfortable.