Florida leaving exonerated inmates penniless

Law excludes those with prior felonies

“Innocent people are innocent people. When the state takes away someone's liberty and wrongfully incarcerates them for three or four decades, they deserve recompense for that.” — Seth Miller, executive director, Innocence Project of Florida

TAMPA - Thirty-eight years ago, when he was 17, Robert DuBoise was charged with burglary and grand theft.

What can be gleaned from court records indicates that police found him in a car that wasn't his and that he was charged as an adult with stealing gasoline, hubcaps, an extension cord and a claw hammer. He netted a four-year probation sentence.

Today, those youthful mistakes bar him from getting close to $2 million.

DuBoise, now 55, was incarcerated for 37 years for a murder he did not commit. Last month, new DNA tests proved his innocence.

A state law allows exonerated people who demonstrate their innocence to receive $50,000 for each year of incarceration, with a cap of $2 million.

But there is a catch. The law excludes those who have prior felony convictions. That caveat makes Florida unique among states that compensate those who are exonerated.

“Innocent people are innocent people,” said Seth

Miller, executive director of the Innocence Project of Florida, a legal organization that works to exonerate the wrongfully convicted. “When the state takes away someone's liberty and wrongfully incarcerates them for three or four decades, they deserve recompense for that.”

Florida passed the Victims of Wrongful Incarceration Compensation Act in 2008. Since then, the state has seen 31 people exonerated, according to the Innocence Project. But only five have received compensation under the law. Most of the others were barred because of prior convictions, or because they didn't file a claim in time.

Thirty-six states have laws allowing compensation for exonerees. Florida is the only one with a “clean hands” provision. It bars compensation for those with a single prior violent felony or multiple nonviolent felonies. The latter applies to DuBoise. The circumstances and severity of the crimes largely do not matter.

“It's really cruel,” said Michelle Feldman, the state campaigns director for the Innocence Project. “The fact that someone has a prior conviction is often what puts them on law enforcement's radar in the first place.”

When the law was debated in 2008, some legislators expressed concern that the state could end up paying huge sums to career or repeat criminals. The clean hands provision was added as a compromise.

Ellyn Bogdanoff, a former Republican state lawmaker, was at the forefront of the debate over the original bill. She recalled disagreement about the number of prior crimes that would be permissible before someone could be barred from automatic compensation.

“If I put in one, somebody wanted two. If I put in two, somebody wanted three,” said Bogdanoff, a lawyer who now does lobbying work. “Nobody could give me a reasonable threshold.”

One man, Bill Dillon, was locked up 27 years for a 1981 murder in Brevard County before DNA tests in 2008 demonstrated he was innocent. Dillon had a prior drug conviction - possession of a single Quaalude pill in 1979 when he was 19 - which blocked his compensation. He had to file a claims bill in the Legislature, essentially a special piece of legislation that awards compensation. He was granted a pardon in 2012 and received $1.3 million.

Another former prisoner, Orlando Boquete, in 2006 was found to be innocent of a 1982 rape case. During his incarceration, Boquete escaped twice, landing new convictions that would bar him from compensation.

Nathan Myers and his uncle, Clifford Williams, spent 43 years in prison for a Jacksonville murder they did not commit. A conviction review unit in the state attorney's office in Duval County helped exonerate them in 2018

Williams had prior convictions. Myers did not.

Early this year, the state said it would grant Myers $2 million. The Legislature had to pass a claims bill for his uncle to receive the same. It passed unanimously in

March.

Others have been barred because they did not apply for compensation within 90 days of their convictions being overturned.

Clemente Aguirre-Jarquin spent 14 years incarcerated, 10 of them on Florida's death row. The state Supreme Court granted him a new trial in 2016 after DNA tests and another person's incriminating statements cast substantial doubt about his guilt in a double-murder case. Just before his re-trial, the state dropped the charges against him.

By that time, he was well beyond the 90-day deadline - but was locked up awaiting a re-trial when it passed.

“This allows prosecutors to make bad prosecutions,” Aguirre-Jarquin said, “because there is no repercussion.”

Aguirre-Jarquin has spoken with state legislators about changing the law. The Innocence Project also has lobbied Tallahassee.

Bogdanoff, the former legislator who helped craft the compensation law, said a potential solution could be to eliminate nonviolent felonies as a bar to compensation.

She also suggested the possibility that a person could be compensated if a certain number of years had passed.

“I think there is a next step that could be taken,” she said.

A few years ago, proponents succeeded in changing the law, so those with a single, nonviolent prior conviction were not prohibited from compensation. But those with multiple charges, such as DuBoise, still are barred.

DuBoise is exploring the possibility of pursuing compensation through a claims bill, said his attorney, Susan Friedman.

There is bipartisan support in the Florida Legislature for removing the clean hands provision.

Rep. Bobby DuBose (DFort Lauderdale) has repeatedly sponsored bills to eliminate it. His bill and a similar one in the state Senate passed through six committees in the most recent legislative session. But the House bill died before receiving a final vote.

The Senate version was folded into a piece of criminal justice legislation, but also ultimately died.

Proponents of the change point out the profound loss that accompanies a wrongful incarceration. Exonerees often emerge from prison with no money, no health insurance, no place to live and no resources to help them cope with the psychological trauma.

“When you are finally free, you realize freedom isn't free,” said Aguirre-Jarquin. “Everything costs.”