The price of innocence
Arizona is finally bringing justice to the wrongfully convicted, on a trial basis.
Next year, Arizona will start the process of compensating people who’ve been incarcerated for crimes they didn’t commit.
We told you about the push for an erroneous convictions law back in March. But the version that ended up getting signed into law amid the end-of-session chaos has a few key differences from the original plan.
The actual compensation hasn’t changed: Those who were wrongfully convicted are eligible for whatever 200% of Arizona’s median household income was each year they were incarcerated1. The new law also provides mental health treatment, postsecondary education and financial planning courses, and there are higher payout amounts for people who were on death row or registered as a sex offender.
But for now, the law is in a one-and-a-half-year test run.
If lawmakers want to continue the program beyond that — and permanently join 40 other states and the federal government in providing restitution for taking away years of people’s lives — they'll have to offer a bill to extend it during next year's legislative session.
Hope DeLap, the strategic litigation counsel for the Arizona Justice Project, said the bill’s backers are still working out how the compensation fund should work and where it should come from. When the law takes effect on Jan. 1, the money will come from a new “erroneous convictions fund” that lawmakers put $3 million into this fiscal year. Everyone who already qualifies under the law will have two years from that start date to file a claim.
Someone can apply for compensation if they were incarcerated for a felony crime they didn’t commit, as long as they didn’t commit perjury that led to the conviction. To prove they didn’t commit the crime, the claimant has to show one of the following:
They were pardoned based on innocence.
Their conviction was overturned, and the charges were dismissed.
Their conviction was reversed or vacated, and they entered an Alford plea or no contest plea while maintaining innocence.
The Arizona Justice Project has been trying to set up a statewide system to compensate falsely convicted people for more than a decade.
The earliest “erroneous convictions” law we found was sponsored by then-Democratic Rep. Kyrsten Sinema in 2010, and it doesn’t have a formal compensation plan.
DeLap worked with lawmakers and criminal justice system stakeholders to finally get it done this year, but she credits a Gilbert-based freshman lawmaker, Republican Rep. Khyl Powell, for delivering the final push.
“It became personal to him, and he understood the kind of population that he wanted to help, and was able to really speak about the bill in concrete terms with his members,” DeLap said. “He really wanted to fight for it, and I think that that's what it took.”
Powell sponsored the original version of the bill, HB2813, which made it through the House with unanimous support. But Republican Sen. Wendy Rogers refused to give it a hearing in the Senate Judiciary Committee, which she chairs.
So Powell revived it with a last-minute, late-night strike-everything amendment to another bill, SB1500.
It was the last piece of legislation the House passed this year, and it earned him a round of thanks from his colleagues, who voted for it 55-1.
Democratic Rep. Sarah Liguori said, “I don't think I've ever seen someone move mountains in the way that he did,” while Freedom Caucus Rep. Alexander Kolodin commended Powell “for his tenacity.”
In the Senate, it barely squeaked by, as all but a handful of Republicans voted against it.
Powell doesn’t fit the stereotype for championing criminal justice reform. He runs an industrial real estate development company, and his campaign website lists past roles in the FBI and Phoenix Police Department.
But he also used to minister in prisons and previously told us that he felt “hopeless” when he thought some of the people he encountered there were innocent.
“This isn’t just policy for me. I have prayed with inmates, cried with families and walked the yards of our prisons long before I took public office,” Powell wrote in an op-ed encouraging readers to tell their lawmakers to pass his bill. “I’ve seen the difference it makes when someone feels seen, heard and treated with dignity. It’s time Arizona extends that dignity to those we failed.”
But to survive the legislative gauntlet, Powell and the Justice Project had to make concessions.
Now, instead of placing the burden of proof on the Arizona Attorney General’s Office, the claimant has to prove “by a preponderance of the evidence” that they didn’t commit the crime they were convicted for. DeLap said that’s standard in other states with compensation laws.
And if the court finds that city or county employees caused the main missteps that led to a wrongful conviction, the new law says that local government entity has to pay for the compensation. In many cases, wrongful convictions trace back to city police and county prosecutors.
And perhaps the biggest change from the law’s original version is that it now comes with an expiration date.
The law is set up as a pilot program to see how compensation plays out in the courts before making it an ongoing program. The law ends on Jun. 30, 2027, unless lawmakers vote to extend it.
The Legislature’s financial experts estimated the previous version of the bill would cost the state $641,000 per year based on 24 Arizona exonerations reported by the National Registry of Exonerations since 1989. They estimated a one-time cost of $4.5 million, however, just to get caught up — assuming that 20% of already exonerated Arizonans file a claim.
But DeLap said the criteria for getting on that list and for being eligible under the new Arizona law don’t line up, so it’s unclear exactly how many people currently qualify.
Still, she thinks easing into the new law with a pilot program might be a good thing.
“I think the pilot program allows us to make sure that there aren't any other changes that need to be made, to make sure that people are having a robust opportunity to raise their claims and have them be heard on the merits and receive compensation,” DeLap said.
Throughout the bill’s journey through the Legislature, only one Democrat — Sen. Brian Fernandez — voted against it.
Fernandez told us his biggest concern was the litigation expenses for rural counties.
Republican Sen. John Kavanagh was among the 12 Republican senators (and one Republican member of the House) to vote against it. He said his opposition was based on county attorneys’ concerns that the bill could compensate people whose convictions were overturned on technicalities, not because they were proven innocent.
Maricopa County Attorney Rachel Mitchell came out as an early opponent of the bill, and the Justice Project worked closely with her office to address her concerns. DeLap said Mitchell’s office pushed for shifting the burden of proof from the AG to the claimant, and a separate provision that also compensates the victims of a crime that resulted in a wrongful conviction.
But it’s not clear if getting those changes in the law actually brought the county attorney on board.
“I support the concept of compensating wrongfully convicted individuals. However, as the bill sponsor acknowledged, the bill was not perfect. I look forward to working with the sponsor and stakeholders on fixing the issues,” Mitchell said in an emailed statement.
We’re still waiting for a response on what those remaining issues are, but Mitchell gave us the same reasoning as Kavanagh did when we asked her about the bill in March: it “would allow people convicted of a horrendous crime to sue if their conviction is overturned for legal (not factual) reasons,” she said.
But that’s not what the bill says, according to DeLap.
While people can file the compensation claims if their “judgment of conviction was reversed or vacated,” there’s another key requirement in the bill language: They must prove that a preponderance of evidence shows “the claimant did not commit the crime or crimes for which the claimant was convicted.”
The Arizona Attorney General’s Office is also a huge stakeholder. But even though the office is responsible for representing the state in wrongful conviction proceedings, it didn’t formally weigh in.
“The office does not oppose the policy itself, but we are opposed to it being an unfunded burden on the office,” spokesperson Richie Taylor told us.
In fact, we haven’t heard any Arizona politician speak out against the state trying to make amends for stealing years from an innocent person’s life. But we also didn’t hear a clear answer to the question Powell asked when the bill passed a House vote in January.
“If the state steals life from somebody, shouldn't they do everything to make it right somehow?”
Now that you’ve seen some of Arizona’s wrongful conviction cases, what do you think the state should pay when it locks up the wrong person?
What about in specific cases — like Debra Milke, who spent 23 years on death row? Or Ray Krone, exonerated by DNA after a decade behind bars?
It’s an impossible question — but it’s one our lawmakers are finally trying to answer.
Do you think the new law goes far enough?
How much would you want for compensation if you lost a decade behind bars?
Tell us in the comments.
Right now, Arizona’s median household income is at about $77,000, but 10 years ago, it was about $52,000.
First, I applaud the legislature, especially Rep. Powell, for this initial step toward doing the right thing. I hope the bugs in the law get worked out during the trial period and that society continues to compensate those who demonstrably have been wrongfully convicted of a crime they did not commit. Your question was about what constituted just financial compensation, but to me that is the bare minimum thrown toward restorative justice. How do you put a price on the priceless, the loss of freedom and agency, the time watching a child grow up, the embrace of a beloved, loved ones who die while someone is wrongfully imprisoned, the reputation impairment, etc.? Those things are priceless and can never be restored. Fair financial compensation seems the very least that we could offer these humans.
There are many comments I agree with and won’t repeat but in looking forward how many are without housing, jobs, new skills? The world has changed in so many ways, technical, social, financial. Education is the silver bullet and should be paid in full. A personalized program might be appropriate. At first glance I wondered how we would fund this my thought went to a federally funded program along with the state. That may encourage other states to look into such a law. What a tragedy. Think of the lives wasted. Can we really ever repay a person wrongfully convicted? Thank you for the article and update.