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  • August 02, 2023

    Supreme Court Decision Spotlights Issue of Compensation for Exonerated

    A recent Wisconsin Supreme Court decision highlights the hurdles wrongfully imprisoned persons face in obtaining meaningful compensation in Wisconsin.

    Jeff M. Brown

    statue of justice holds scales with dollar on it

    Aug. 2, 2023 – In the last opinion handed down in the 2022-23 term, the Wisconsin Supreme Court turned down an appeal from a man seeking $5.7 million from the State Claims Board after being wrongfully imprisoned for 26 years.

    In Sanders v. State of Wisconsin Claims Board, 2023 WI 60 (June 30, 2023), the supreme court decided, on narrow statutory grounds, that the Wisconsin State Claims Board (Board) was not required to submit a report to the legislature regarding whether the $25,000 it awarded the man was inadequate.

    The case revisits an issue last taken up by the legislature in 2016: the low amount of compensation available to wrongfully convicted persons in Wisconsin.

    A Crime He Didn’t Commit

    In August 2018, a Milwaukee County Circuit Court vacated Derrick Sanders’ 1993 conviction for first-degree intentional homicide as a party to a crime. Sanders was then released from prison, where he’d spent 26 years on the conviction.

    Jeff M. BrownJeff M. Brown, Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    On two occasions, Sanders had pled no contest to the homicide charge. He mistakenly thought the state could prove that charge, despite the fact he’d taken part only in an assault of the victim, which occurred before two other men – without Sanders – took the victim to another location and killed him.

    In February 2019, Sanders filed a claim with the Wisconsin Claims Board (Board) under Wis. Stat. section 775.05. He sought $25,000, the maximum the Board could award under state law, and an additional $5.73 million.

    In February 2020, the Board – which is made up of one representative each from the state Department of Justice, the Department of Administration, the Governor’s office, the Assembly, and the Senate – determined that Sanders had demonstrated by clear and convincing evidence that he was innocent and awarded him $25,000.

    Sanders filed a petition for a rehearing with the Board. He claimed the Board erred by failing to address his request for the additional $5.73 million in compensation.

    When the Board denied Sanders’ petition, he appealed to Dane County Circuit Court. The circuit court affirmed the Board’s decisions.

    The Wisconsin Court of Appeals District IV reversed.

    The court of appeals held that Wis. Stat. section 775.05(4) requires the Board, whenever it awards the maximum amount, to explain its determination that the statutory maximum amount does or does not constitute adequate compensation.

    The court of appeals also concluded that the Board erred by failing to demonstrate, by including findings or an analysis, that it had exercised its discretion in determining whether the $25,000 statutory maximum was adequate compensation.

    The Meaning of ‘If’

    Justice Rebecca Bradley began the supreme court’s lead opinion by explaining that the issue was deciding what the legislature meant when it used the word “if” in section 775.05(4): “if the claims board finds that the amount it is able to award is not an adequate compensation it shall submit a report specifying an amount which it considers adequate to the chief clerk of each house of the legislature.”

    R. Bradley looked to dictionary definitions of “if” and concluded that the word signified conditionality.

    “Applying these definitions, Wis. Stat. section 775.05(4) requires the Board to submit a report ‘in the event that’ or ‘on the condition that’ the Board finds that $25,000 is inadequate,” Justice R. Bradley wrote. “The Board did not so find.”

    Absent such a finding, R. Bradley concluded, the statute did not require the Board to submit a report to the legislature.

    Dissent: Lead Opinion Shields Board

    Justice Karofsky wrote in her dissent that the lead opinion would change the mandatory wording of section 775.05(4) into “a mere suggestion and erroneously shields the Board from judicial review.”

    Karofsky pointed out that while the Board provided a detailed rationale for determining that Sanders was innocent, it provided no rationale for awarding him the maximum amount of $25,000.

    “We do not even know whether the Board considered adequacy at all or whether it ceased consideration of the case upon awarding the statutory maximum,” Justice Karofsky wrote.

    The logic of the lead opinion, Karofsky argued, would allow the Board, on a “whim,” to sidestep the requirement that it submit a report to the legislature if it finds an award inadequate.

    Wisconsin: From First to Worst

    In dicta, Justice Karofsky pointed out that Wisconsin was the first state to provide compensation for wrongfully convicted persons, by enacting legislation in 1913. Since that time, she added, 38 states have followed suit.

    But today, Karofsky noted, Wisconsin’s $5,000 per-year cap on compensation to wrongfully imprisoned persons is the lowest in the country and the state’s $25,000 total compensation cap is the second lowest.

    Most states, she pointed out, allow up to $50,000 per year. Karofsky also pointed out that the total compensation cap established in the 1913 law ($5,000; a later bill raised it to $25,000), if adjusted for inflation, would add up to $150,000 in 2023 dollars.

    Bill Would Have Boosted Amount

    Those low numbers mean that the 65 persons exonerated in Wisconsin between 1989 and 2021 are eligible for far less compensation than their counterparts in other states.1

    Under section 775.05(4), the Board may award an exonerated person in Wisconsin up to $5,000 for each year he or she was imprisoned, up to a maximum of $25,000.

    Bipartisan legislation proposed during the 2015-16 Wisconsin legislative session would have quintupled the $5,000 per year maximum to $50,000, up to a maximum of $1 million.

    The State Bar of Wisconsin’s Criminal Law Section supported the bill. In June 2016, the State Bar’s Board of Governors adopted an official policy position supporting the legislation.

    Keith Findley, a professor at the University of Wisconsin Law School and director of the law school’s Wisconsin Innocence Project, said in 2016 that the proposed change was long overdue.

    “The current compensation amount is way out of step with national norms,” said Findley, whose work at the WIP has helped free 20 individuals who were wrongfully convicted in Wisconsin since 1998. “The political process of a private bill is not the best way of compensating people who are wrongfully convicted and lose years of their lives.”

    Under the proposed bill, exonerated persons would have qualified for the state employee health insurance plan for up to 10 years.

    Additionally, a circuit court that ordered a person released from prison based on his or her innocence would have been required to: 1) order an award of temporary financial assistance to help them get on their feet while the award from the Board was being processed; and 2) seal records related to the wrongful conviction.

    The bill would also have directed claims by exonerated persons to be heard by an administrative law judge instead of the Board.

    “This is a bipartisan and non-political issue,” Findley said in 2016. “Nobody wants innocent people in prison, and no one wants to punish people who didn’t do anything wrong. When the criminal justice system does make mistakes, everyone recognizes that the injustice needs to be remedied in some way.”

    The bill passed the Assembly unanimously but failed in the Senate. Similar bills have been introduced in subsequent sessions but failed to gain traction.


    1 According to the National Registry of Exonerations (NROE), 2,795 persons were exonerated in the United States between 1989 and 2021. As of June 2021, governments had paid nearly $3 billion in compensation to exonerated persons. But more than half of the 2,795 received nothing.

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