By Christina G. Leung*

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Introduction

Innocent but still “branded with a scarlet letter.”[1] The stigma of a wrongful conviction remains with the individual, even posing as an obstacle for them in their attempt to reintegrate into society.[2] The declaration of guilt by the court holds immense weight. Such characterization leaves an imprint that the individual is guilty, even if they are innocent.[3] “No matter what happens to you, you are constantly put under the eye of distrust that you can never shake . . . . It never, ever ends. It never ends. It never ends. It never will be ended.”[4] These are the words uttered by Kirk Nobel Bloodsworth, a man who was wrongfully convicted for a rape and murder of a young girl[5] even though he was factually innocent.[6] Despite being exonerated, Mr. Bloodsworth and many others similarly situated continue to be haunted by their wrongful conviction.[7]

To understand the damage caused by wrongful convictions, this piece explores the remedies currently available to factually innocent individuals. Specifically, this piece highlights the struggles of the innocent in their attempt to reintegrate into a society with limited state resources. Part I describes the poor monetary compensation currently available to now “freed” exonerees. Part II analyzes suggestions addressing the need for automatic expungement of criminal records in response to the poor monetary compensation available to exonerees.

I. Freed from Prison Bars to Be Barred from Adequate Compensation

Money will never be enough as a remedy to make up for the years lost behind bars.[8] For those wrongfully convicted, monetary compensation is insufficient to remedy the struggles endured and hardships that await.[9] Since compensation is insufficient from the outset, it becomes even more difficult for exonerees to get back onto their feet.[10]

A. State Statute Compensation

Despite losing years of their lives to being imprisoned for a crime not committed, some wrongfully convicted individuals may not be compensated,[11] or if they are compensated, only compensated a meager amount.[12] As of 2024, only thirty-eight states and the District of Columbia have compensation statutes.[13] As for the other twelve states, they do not provide any compensation at all for wrongful convictions.[14]

Arguably, in states with compensation statutes, some compensation is better than no compensation at all. However, even with a compensation statute, the money is not paid out immediately[15] because an exoneration does not provide automatic compensation.[16] What should be a moral obligation of the state to right their wrong can take months or even years.[17] Meanwhile, the exoneree’s life carries on with only the “gate money”[18] provided to them during release to assist with their reentry.[19] However, gate money alone is not enough for transportation, medical care, housing, clothing, and food, the necessities of exonerees upon their release.[20]

B. Compensation from Civil Action Suits

Damages from civil action suits are different from damages received from state compensation statutes.[21] For the twelve states that have no compensation statutes, a civil suit under 42 U.S.C. section 1983 may be brought to recover damages.[22] However, civil suits are not a viable alternative to state compensation,[23] as there are no guarantees that the individual will receive payment. There is no guarantee of financial compensation from civil suits because of the high burden required of the exoneree to prove that their constitutional rights were intentionally violated by a state actor.[24] Further, immunity is often granted to state actors such as the police, prosecutors, and judges.[25] As a result, exonerees rarely ever prevail on such constitutional tort claims.[26] Such results can leave an innocent individual in a no-compensation statute state with no remedy at all.[27]

II. Automatic Expungement: The Remedy to Right the Miscarriage of Justice

Expungement is the removal and sealing of an individual’s criminal record to prevent employers, landlords, and other entities from finding these records.[28] However, employers and landlords are still able to access these records despite the exoneration of a wrongful conviction because criminal records do not automatically get expunged.[29]

Automatic expungement should be an immediate procedure following a release because not only does it provide exonerees with a better chance of societal reintegration but also because factually innocent individuals did not commit the crime in the first place. And when monetary compensation is inadequate,[30] exonerees must turn to employment to earn the funds necessary to ensure that their societal reentry is successful.[31] Immediate expungement allows for easier navigation in the job market, and it also opens the door to more job opportunities.[32]

A. The Negative Effects Without Automatic Expungement of Criminal Records

An overwhelming majority of exonerees need employment after their release.[33] However, compared to others, exonerees lag behind professionally due to their lack of education and employment experience.[34] With years missing from their resumes and criminal records that have yet to be expunged, finding and keeping a job proves to be difficult.[35] When entering into the already competitive employment market, factually innocent exonerees still have to grapple with rape and murder convictions appearing on their records during background checks.[36] In Mr. Bloodsworth’s case, he lost multiple jobs because of this reason.[37] Mr. Bloodsworth was fired when his status as an ex-convict caused the business he was working for to lose money.[38] He was also forced to quit another job after being tormented with anonymous letters calling him a “child killer” and when he found derogatory terms written in dirt around his truck.[39]

B. Automatic Expungement Is the Remedy Needed for a “Do-Over” After an Exoneration

Even if an individual has been exonerated from a wrongful conviction, employers still disregard their application because of the existence of a criminal record.[40] Employers are unwilling to take the chance to hire someone who has been to prison, even if that person is innocent.[41] However, automatic expungement removes the stigma and discrimination by employers[42] because the individual’s records would be sealed from being seen. Automatic expungement opens the door to not only more but also better job opportunities for the exoneree.[43]

Moreover, automatic expungement allows exonerees to rebuild their lives without having to worry about a criminal record.[44] It allows exonerees to not have to worry about having to explain themselves or their situation during interviews[45] with the fear that the employer will not understand or will still disqualify them despite their explanation.[46]

Conclusion

When monetary compensation provided by the state after an exoneration is insufficient or nonexistent, those wrongfully convicted must turn to employment to sustain a living. However, exonerees are still bound by invisible shackles to a crime that they did not commit. The existence of a conviction, even if wrongful, frustrates an individual’s efforts to attain work. Nonetheless, the expungement of their records can help innocent individuals break down employment barriers.

The miscarriage of justice discussed in this piece can be remedied by the automatic clearance of the exoneree’s criminal record. In effect, the clearing of a criminal record allows innocent individuals who have been wrongfully convicted to start anew with a clean slate.

          *     Christina G. Leung, J.D., Esq., University of San Francisco School of Law, 2024; B.A. San Jose State University, 2019. This piece is dedicated to my family and friends because without their unwavering support throughout my academic and professional career, this piece would have never come to life. Additionally, thank you to U.S.F. Law Review for providing this platform to allow for the highlighting of the necessary changes that needs to be made in how our criminal legal system treats individuals who they have wrongfully convicted.

         [1].     Jack Healy, Wrongfully Convicted Often Find Their Record, Unexpunged, Haunts Them, N.Y. Times (May 5, 2013), https://www.nytimes.com/2013/05/06/us/wrongfully-convicted-find-their-record-haunts-them.html (last visited Oct. 7, 2024).

         [2].     See generally Lauren Legner, Comment, The Psychological Consequences of a Wrongful Conviction and How Compensation Statutes Can Mitigate the Harms, 2021–22 Mich. St. L. Rev. F. (Apr. 26, 2022), https://www.michiganstatelawreview.org/vol-2021-2022/2022/4/25/the-psychological-consequences-of-a-wrongful-conviction-and-how-compensation-statutes-can-mitigate-the-harms [https://perma.cc/28QY-9UJN].

         [3].     See Leslie Scott, “It Never, Ever Ends”: The Psychological Impact of Wrongful Conviction, 5 Am. U. Crim. L. Brief 10, 11–12 (2010).

         [4].     Id. at 10.

         [5].     Id.

         [6].     Rebecca Pirius, Factual Innocence, Crim. Def. Law. (Jan. 5, 2024), https://www.criminaldefenselawyer.com/resources/criminal-defense/defendants-rights/factual-innocence.htm [https://perma.cc/2NB2-V4NH] (defining factual innocence as “facts and evidence exist proving that a person accused or convicted of a crime did not or could not have committed it”).

         [7].     Id.

         [8].     See Compensation for Wrongful Convictions Doesn’t Make Up for Years Lost, Joel L. Sogol Att’y At L., https://www.joelsogol.com/articles/compensation-for-wrongful-convictions-doesnt-make-up-for-years-lost/ [https://perma.cc/5Q4J-3P5R].

         [9].     See Scott, supra note 3, at 11.

      [10].     Legner, supra note 2.

      [11].     See, e.g., HB 1470 | Compensation for the Wrongfully Convicted, ACLU Pa. [hereinafter HB 1470], https://www.aclupa.org/en/legislation/hb-1470-compensation-wrongfully-convicted [https://perma.cc/RX7R-RHVG].

      [12].     Scott, supra note 3, at 11.

      [13].     Alejandra Marquez Janse & Ari Shapiro, For the Exonerated, Compensation Is a Battle for Stability and Dignity, NPR (Jan. 11, 2023, 5:00 AM), https://www.npr.org/2023/01/11/ 1147443227/for-the-exonerated-compensation-is-a-battle-for-stability-and-dignity [https://perma.cc/28W8-VKQK].

      [14].     HB 1470, supra note 11.

      [15].     See Marquez Janse & Shapiro, supra note 13.

      [16].     Scott, supra note 3, at 10.

      [17].     See Marquez Janse & Shapiro, supra note 13.

      [18].     California Looks to Increase “Gate Money” to Help People Adjust to Life After Prison, PBS (Sept. 15, 2022, 6:25 PM), https://www.pbs.org/newshour/show/california-looks-to-increase-gate-money-to-help-people-adjust-to-life-after-prison (last visited Mar. 13, 2024) (defining gate money as “the small sums that some states give to people when they walk out of prison”).

      [19].     Evan J. Mandery et al., Compensation Statutes and Post-Exoneration Offending, 103 J. Crim. L. & Criminology 553, 578 (2013).

      [20].     See John Grisham, Making Up for Lost Time: What the Wrongfully Convicted Endure and How to Provide Fair Compensation 3 (2009).

      [21].     See id. at 12.

      [22].     See Mary C. Delaney et al., Exonerees’ Hardships After Freedom, 83 Wis. Law. 18, 20–21 (2010).

      [23].     Grisham, supra note 20, at 3.

      [24].     See Delaney et al., supra note 22, at 21.

      [25].     Mandery et al., supra note 19, at 557.

      [26].     Id. at 556.

      [27].     See id.

      [28].     Exoneration vs. Expungement: What’s the Difference?, Knutson+Casey (Dec. 16, 2020), https://knutsoncasey.com/exoneration-vs-expungement-whats-the-difference/ [https://perma.cc/33C9-R5H3].

      [29].     See generally id.

      [30].     See generally supra Part I.

      [31].     See Michelle L. Estes, “I Would Hire You, But…”: Navigating the Job Market After a Wrongful Conviction (May 2021) (Ph.D. dissertation, Oklahoma State University) (ProQuest).

      [32].     Id. at 95.

      [33].     Mandery et al., supra note 19.

      [34].     Grisham, supra note 20, at 3.

      [35].     See generally Mandery et al., supra note 19.

      [36].     See Grisham, supra note 20, at 10.

      [37].     Scott, supra note 3, at 11–12.

      [38].     Id.

      [39].     Id. at 12.

      [40].     Exoneration vs. Expungement: What’s the Difference?, supra note 28.

      [41].     Grisham, supra note 20, at 11.

      [42].     See 9 Benefits of Expunging Your Criminal Record, Clean Slate L. (Aug. 27), https://www.cleanslate.law/blog/9-benefits-of-expunging-your-criminal-record [https://perma.cc/JC4Z-KAFW].

      [43].     See generally id.

      [44].     Grisham, supra note 20, at 38 (appending California Assembly Bill 316). See generally A.B. 316, 2009–10 Cal. Assemb., Reg. Sess. (Cal. 2009).

      [45].     See id. at 10–11.

      [46].     See Estes, supra note 31, at 84–85.

By Victoria S. Kolakowski*

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Introduction

One of the joys and hazards of teaching a class on cutting-edge constitutional law issues is that the U.S. Supreme Court can surprise us with decisions that take unexpected paths.

This occurred in the summer of 2021 when the Court issued its opinion in Fulton v. City of Philadelphia and did not address a crucial issue queued up by the parties: whether the Court would directly address the holding of Employment Division, Department of Human Resources of Oregon v. Smith.[1] I prepared the syllabus of my course, “Equality and Religious Freedom,” with the expectation that Fulton would be the capstone and finally announce the new legal regime in religious freedom. This essay addresses the history of Smith, why the Court deferred taking Smith head-on in Fulton, and what the Court might choose to do in the future.

Continue reading “Whither Smith?” →

By Charles Belle* & Michele Neitz*

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Introduction

One evening in 2018, Professor Michele Neitz sat in a law school classroom surrounded by judges. She was teaching a workshop on the basics of blockchain technology. When the discussion turned to cryptocurrency, one judge raised his hand and asked, “But where does cryptocurrency actually live? Can I hold it in my hand?” Professor Neitz answered, “No, blockchain is a digital technology, and cryptocurrency is a digital asset.” The judge sat back, shook his head, and replied, “Nope. If I can’t touch it, it isn’t real.”

The judge’s feelings about cryptocurrency are understandable. Blockchain can, at best, feel like something that might only be used in video games. Blockchain technology, however, is not an abstract concept. People use the technology in the same way they use their phones and smartwatches to pay for coffee or board a plane: invisible but relied upon. Like other everyday tools, blockchain has clear technical definitions and uses. For example, although only a small segment of the global population uses cryptocurrency, the market value is nearly $2 trillion at the time of this writing.[1]

Continue reading “Unraveling the Legal Maze: USF Law’s Blockchain Law for Social Good Center Explores the Intersection of Law and Emerging Technologies” →

Continue reading “The Hidden Shoals of Maritime Law: A Maritime Lawyer’s Navigational Chart for Shoreside Counsel” →

By Kevin Frazier* on April 10, 2024

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Many promote the importance of the Rule of Law.[1] Its maintenance, or lack thereof, can substantially affect a democracy: “If you can weaken the Rule of Law, you can weaken democracy,” explains Asha Rangappa.[2] Similarly, protection of the Rule of Law[3] can foster economic growth. In recent decades, international development efforts led by the World Bank, for instance, have included investments in the Rule of Law.[4] Finally, the Rule of Law can facilitate societal well-being. As pointed out by Cass Sunstein, “When cases are settled in advance, people are able to plan their affairs and to do so with knowledge of what government may and may not do.”[5]

Continue reading “The Rise of the Interdisciplinary Lawyer: Defending the Rule of Law in the Age of AI” →

Continue reading “Revisiting Manson v. Brathwaite and Eyewitness Identification” →

Continue reading “Towards Intelligent Regulation of AI” →

By Matan Kotler-Berkowitz and Elijah Wiesman on November 12, 2020.

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Introduction

A. Brett Jones

On August 9th, 2004, fifteen-year-old Brett Jones was attacked by his grandfather.[1] Backed into a corner, Jones stabbed his grandfather eight times with the object he had in his hands at the time, a steak knife.[2] He then unsuccessfully tried to perform CPR to save him.[3] Jones was subsequently convicted of murder and sentenced to life in prison.[4] The Mississippi Circuit Appeals Court upheld his sentence on appeal.[5]

Continue reading “Inconsistent With Youth: Equal Protection, Cruel and Unusual Punishment, and the Issue of the Incorrigibility Standard” →

By Reza Dibadj* on April 10, 2020

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The mass media is often justifiably criticized for conveying information with out-of-context “sound bites.”[1] Unfortunately, academic literature is not immune to this problem. In this short Essay, I take four iconic articles—each standing for a well-worn proposition—and make the rather simple argument that the articles themselves are far more nuanced than the sound bites for which they have become famous.

I address four articles: Ronald Coase’s The Problem of Social Cost,[2] Oliver Wendell Holmes’s The Path of the Law,[3] Warren and Brandeis’s The Right to Privacy,[4] and Jensen and Murphy’s CEO Incentives—It’s Not How Much You Pay, But How.[5] According to one well-known study, the first three are the most-cited law review articles of all time.[6] The fourth is a classic article on executive compensation—a topic of great social controversy at the moment—from the business literature.

Continue reading “On Academic Sound Bites” →

By Samuel Rosario on March 16, 2020

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Introduction

Systemic sexism is a struggle that has plagued society for eons, not just American culture. Recently, there has been a systematic effort to achieve gender equality in the United States. With the emergence of the “Me Too” movement, women’s rights have moved to the forefront of national concern.[1] As a reaction to public outcry for a diverse workforce, large corporations restructured their bylaws and ethical rules.[2] The upper echelon of the work force used to be dominated by men.[3] However, because of this movement towards gender equality, the work force is increasingly becoming diverse. Now “more than half the U.S. work force . . . consists of minorities, immigrants, and women” thereby making “white, native-born males, though undoubtedly still dominant, . . . a statistical minority.”[4] Further, American companies now have the ability to do “their best to become more adaptable, to compete more successfully for markets and labor, foreign and domestic, and to attract all the talent they can find.”[5]

Continue reading “Gender Bias in the Legal Profession” →