[O]nce those convictions were erased, the presumption of their innocence was restored.
– Justice Ruth Bader Ginsburg
Maurice Atwone Caldwell was released from a California prison over six years ago, but he doesn’t feel free. Hobbled by back pain and suffering from Post-Traumatic Stress Disorder from years in prison, he spends many days in his suburban Sacramento apartment. He feels most relaxed sitting alone in his favored spot on the couch: “I’m secluded here. In prison, you are secluded. You go to your cell, you are separated from everybody. When you have people around you, you’ve got to have a sense of trust. I don’t have no sense of trust.” Looking back on his life, Caldwell doesn’t see much reason to have a sense of trust.
In the summer of 1990, twenty-two-year-old Caldwell was living in San Francisco’s Alemany housing projects. “Little Twone,” as the 5’4 Caldwell was known on the streets, was in a situation shared by many young people today—a few years out of school, working at whatever jobs were available, hanging out with friends and trying to get established in the adult world. In that era of rampant crime and crack cocaine, any young black man with only a high school education would struggle. But Caldwell faced extra challenges.
“To me, my case was personal. My case falls back to my last name—my father.” Donald Ray Caldwell was convicted of killing a San Francisco police officer during a robbery and served nineteen years before being released in 1988. As Maurice sees it, the San Francisco police resented the fact that the elder Caldwell was alive and walking the streets, and they were more than willing to settle the score at Maurice’s expense. In 1989 and 1990, Maurice was arrested more than a dozen times; in every case the charges were eventually dropped.
A botched drug sale in the early hours of 30 June 1990 changed Caldwell’s life. Around 2 a.m., after an evening of drinking, four men drove up Alemany Blvd. looking to buy crack cocaine. They found a dealer, but as the buy was being completed something went wrong and shots were fired from a handgun and a shotgun. The four friends scattered, but one man, Judy Acosta, died from gunshot wounds. Caldwell, who was in bed with his girlfriend in a nearby apartment, heard the shots and ran outside to find out what was happening, but only saw an acquaintance walking away carrying something that looked like a shotgun.
The initial police investigation didn’t turn up much since in the midst of an epidemic of drugs and violence, Alemany residents generally deemed the police more likely to harass a witness than arrest a killer. But several weeks after the murder, neighbor Mary Cobbs identified Caldwell as one of the shooters. He was arrested 21 September 1990. Caldwell’s family scraped together money to hire a lawyer who had never tried a capital case before, but assured Caldwell that “this case is a slam dunk.”
The initial police investigation didn’t turn up much since in the midst of an epidemic of drugs and violence, Alemany residents generally deemed the police more likely to harass a witness than arrest a killer.
The prosecution’s case against Caldwell did have problems. None of the survivors of the shooting were able to positively identify him, and several witnesses testified that Caldwell was indoors when the shooting occurred. The police failed to follow accepted procedures while taking Cobbs’s statements, which cast doubt on the reliability of her identification of Caldwell. However, at trial Cobbs was steadfast in her assertion that she saw Caldwell at the scene of the crime with a shotgun. The jury found Caldwell guilty, and he was sentenced to a term of twenty-seven years-to-life in prison. Cobbs, who claimed Caldwell threatened to kill her if she testified, was proclaimed a hero and awarded the Medal of Merit by the City of San Francisco.
Throughout his twenty years in prison, Caldwell strenuously asserted his innocence. He wrote letters to anyone he could find who might help him. Finally, in 2009 the Northern California Innocence Project (NCIP) took up his cause. The NCIP followed leads that Caldwell had given the police and his attorney, but which neither Caldwell’s attorney (who was later disbarred) nor the police ever pursued. Marritte Funches, serving time in a Nevada prison, admitted he shot Acosta and swore that Caldwell was not involved. Investigators demonstrated that Mary Cobbs could not have seen the incident from her window, and talked with acquaintances who testified that Cobbs lied about Caldwell.
The NCIP filed a petition for habeas corpus in state court claiming that Caldwell’s conviction was based on perjured testimony, that he received ineffective representation by counsel and that he was actually innocent of the crime for which he was convicted. The court ordered him released, finding that his attorney’s inadequate defense constituted a violation of Caldwell’s constitutional rights. Still asserting Caldwell’s guilt, the San Francisco District Attorney entertained retrying the case and offered Caldwell a plea bargain: he could acknowledge guilt and would be released from prison on the basis of the time already served. When Caldwell refused the deal, the District Attorney dropped the charges. On 28 March 2011, Maurice Caldwell was released from prison. He had served over twenty years, just about one year longer than his father.
Caldwell’s release confronted him with new challenges—making a living and a building a life. The family members who stood by him through his ordeal had all died while he was incarcerated. The world had changed while his life was on hold. Caldwell had never owned a cellphone or an iPod, and he barely remembered how to buy a ticket for a Bay Area Rapid Transit (BART) train. The kitchen work he had done while in prison left him with a bad back but no marketable skills.
In some ways, Caldwell was worse off than an inmate who served out an entire sentence. While few would argue that post-release services in California are adequate, at a minimum the system provides the supervision of a parole officer and some limited resources to assist the former inmate’s reentry into society. Since the court found that Caldwell should never have been in the corrections system in the first place, he was not eligible for those services. A 2008 report on wrongful convictions by the California Commission on the Fair Administration of Justice recommended that services to assist reintegration into society be offered to the wrongfully incarcerated. Shortly afterward, the legislature overwhelmingly voted to make this change, but the bill was vetoed by Governor Schwarzenegger. It has never been revived.
Still, Caldwell persevered. He moved in with his sister and her partner, and found work as a laborer at a recycling plant until increasing back pain forced him to leave the job. He moved to Sacramento with his girlfriend and continued to work until disabled by carpal tunnel syndrome. Also, like many who have spent long years in California prisons, Caldwell has suffered (and suffers) from Post-Traumatic Stress Disorder, which contributes to his current disability.
Today, Caldwell’s greatest satisfaction comes from working with the NCIP, speaking about his personal experiences. “I’m not one of those persons who get out of prison and stand in front of the camera and say ‘I’m not mad at the system.’ I am mad at the system. And for that, I am doing something about it.” Speaking is therapy for Caldwell. But even more, it is his way of setting up his three children for a better life than he had. “The character I’ve got right now, when my kids grow up, ain’t nobody going to be able to say, ‘your father was a bad person.’ They’ll be able to look and see me speaking, helping people…. I am not doing what my father did to his kids.” But his speaking engagements do little to pay the bills, and Caldwell has few opportunities to earn other income. Having lost literally the best years of his life, Caldwell needs compensation.
There are limited routes for an exonerated inmate like Caldwell to receive compensation. The best hope is a claim for violation of civil rights under federal law by showing that the conviction was secured through illegal actions by police or prosecutors. Though notoriously hard to win, such claims offer the prospect of punitive damages and are the basis for most of the multimillion-dollar verdicts and settlements, as in the infamous Central Park Jogger case. That $41 million settlement paid five individuals approximated $1 million per year served. Caldwell filed a civil rights case in federal court, but the lawsuit was dismissed without a trial (an appeal is currently pending). Claims can be made under state law as well, but these too are only rarely successful.
The other option is a claim under a statute providing compensation for wrongful incarceration. Until relatively recently, few such laws existed. Although California’s statute was enacted in 1941, most states’ laws came in more recently. As of 2000, only fourteen states (along with the District of Columbia and the federal government) had such statutes, and many of those provided negligible amounts. The California statute capped payments at a flat $5,000 until 1969, when the limit was raised to $10,000. A key reason for this was that until the widespread use of DNA evidence, wrongful convictions were deemed rare.
Since the early 1990s, studies (many supported by the New York-based Innocence Project and its affiliates around the country) have documented hundreds of erroneous convictions. In response, many states have made efforts to reduce errors, for example by establishing strict guidelines for obtaining and using eyewitness identifications like that of Mary Cobbs, which are known to be a prime source of wrongful convictions. Many have also passed laws providing compensation for those wrongfully convicted. Currently, thirty-two states have statutes providing compensation for wrongful incarceration. Ironically Texas, which executes far more individuals than any other state, also offers the most generous payments for wrongful incarceration.
Over the years, California’s legislature has modified procedures and increased the amount of compensation available. Payout is now set at $140 per day served (about $50,000 per year), with claims being reviewed by the California Victim Compensation Board and submitted to the legislature for final approval and award. As with statutes in other states, compensation is available only to individuals who are innocent, not to those released as a result of mistakes or governmental misconduct in the course of the prosecution.
The most recent changes in the California requirements for recovery came in 2013 in response to analysis showing that most claims were being denied. The changes in the law seem to have made a difference. Since 2014, seventeen out of twenty-seven claims have been granted. Still, meritorious claims are being denied; at least four of those denied since 2014 were contrary to the recommendation of the staff-hearing officer who heard them. One involved Luis Galicia, who was convicted in 2009 of lewd acts with a child under fourteen years of age.
In 2011, Galicia filed a petition for habeas corpus in state court. By then it had come to light that Dr. Mary Spencer, whose examination of the minor was critical to the prosecution’s case, had given false testimony in a 1991 case (as it turned out, she gave inaccurate information in at least ten other cases, too). Three other doctors reviewed the medical reports and found no basis to conclude any molestation had occurred. The District Attorney chose not to oppose Galicia’s petition and the court ordered his release, but did so without making a finding of innocence.
Galicia filed a claim with the Victim Compensation Board. The Attorney General’s office, who represents the state before the Board, opposed the claim asserting that Galicia was guilty of the crime. After a daylong hearing, the hearing officer concluded that Galicia had proved his claim of innocence and recommended it be paid.
The Board, reluctant to accept the recommendation, asked Galicia’s attorney and the Attorney General’s office to present their arguments to the full Board. No witnesses testified, but a representative of the Crime Victim Action Alliance was allowed to speak and urge the Board to deny Galicia’s claim. The Board rejected Galicia’s claim 3-0. The chair “found that the evidence presented was very complicated, and had difficulty drawing any conclusions.” She said she wanted to support the hearing officer’s recommendation, but “couldn’t find the evidence” that would allow her to accept that recommendation.
There are obvious institutional reasons that the Board may be hostile to claims of wrongful incarceration. The Board’s mission and primary business focus is on victims of violent crime, not victims of erroneous prosecution. The stated mission of the Board is straightforward: “The Victim Compensation and Government Claims Board provides financial assistance to victims of crime.” In that capacity, the Board processes tens of thousands of claims per year, and over the last few years has averaged payouts totaling over $50 million annually. In contrast, the program for compensating those wrongfully incarcerated, discussed in the Board’s Annual Report in the section, “Additional Board Functions,” paid out about $14.5 million total from 2001 through 2017.
The composition of the Board as set out in its enabling statute does little to adjust the balance. Two members are specified in the statute. One is the Secretary of the California Government Operations Agency, which is charged with improving government administration and fostering efficiency. The other is the State Controller, who is responsible for the state’s financial resources. As the Controller is required to sit on seventy boards and commissions, they typically designate a staff member for this role. In any case, given the nature of their jobs, neither of these delegated officials is likely to have any expertise in criminal law or procedure.
The third member is chosen by and serves at the pleasure of the Governor with no specified qualifications. Michael Ramos, the District Attorney for San Bernardino County, was appointed in 2004 by Governor Schwarzenegger and has served since. According to an ACLU study, San Bernardino County has the second highest rate of killings by police officers in California. Beyond how this context may inform Ramos’s approach, district attorneys are unlikely to provide sympathetic perspectives for a body reviewing claims against the state being made by those once convicted of a felony.
Ramos’s service on the Board reflects his perspective as a prosecutor. In voting to overturn the hearing officer’s recommendation to approve the claim of Timothy Atkins, he made what has become a typical comment: “I still feel the same way regarding the statements and then one thing that actually stood out for me and when I have these difficult—very difficult decisions—I always lean toward the victims. We have a victim that has been murdered.” It is difficult to see how the plight of victims factors into assessing the evidence of the claimant’s guilt. Indeed, a wrongfully convicted person is also a victim. But, as the longest serving member of the Board and the only one with criminal law experience, Ramos’s pronouncements carry a lot of weight. And the Board generally operates by consensus. Since 2010 there have only been three split votes, and in all three Ramos voted to deny the claim.
California State Senator Bill Monning has recognized the flaws in the system: “Unfortunately, the current compensation review process forces exonerees, who have very few resources, to defend their claim before the Victim’s Compensation Board, whose members are not experienced in the legal nuances of wrongful conviction cases.” In March 2017, Senator Monning introduced SB 321, which would require appointment of a special master, qualified by “education, training, and work experience,” to oversee all claims for wrongful incarceration. However, at least for this session, the bill will not be enacted.
Perhaps the biggest hurdle for a claimant is the burden of proof—under the California law, they have the burden to prove that they are innocent of the crime of which they were convicted. In addition, the Board has issued regulations to clarify how claims should be reviewed. Those regulations specify that the claimant must prove innocence “by a preponderance of the evidence,” which means the Board must find it is more likely than not that the claimant is innocent. This is the standard used throughout the United States for civil claims, and contrasts the heavier burden on the prosecution in a criminal case—proof beyond a reasonable doubt.
However, the Board added a hurdle for claims of wrongful incarceration. The claimant’s testimony can be considered, as well as the fact that they were released and not tried again, or were acquitted on retrial. However, none of that can be the basis of an award without “substantial independent corroborating evidence.” Even after their conviction has been reversed, the claimant’s own testimony cannot be sufficient to support a finding of innocence.
Though the claimant’s burden of proof is deemed met if a court has already made a finding of innocence, there may be no such finding even when the facts indicate it. Most individuals who are exonerated after serving time in jail are released through habeas corpus proceedings in state or federal court. The U.S. Supreme Court has made clear that in the federal courts, the subject of a habeas corpus review “is not the petitioners’ innocence or guilt but solely the question of whether their constitutional rights have been preserved.” Under California law, new evidence pointing to innocence can be ground for reversing a conviction, but it is only one of numerous bases that can be presented. Many state law proceedings, too, are based on claims that the defendant’s constitutional rights were violated. In those cases, discussion of innocence can be beside the point.
In Caldwell’s case, although the Innocence Project lawyers argued that he was innocent, the habeas court vacated the conviction based on lack of effective representation at trial as required by the Sixth Amendment. The court made no finding as to guilt or innocence in his decision, and when Caldwell went back to court to request a finding of innocence to bolster his claim, the court declined. The San Francisco District Attorney who never pursued charges against Marritte Funches, who confessed to shooting Judy Acosta, or against Henry Martin, who was identified by Funches as the shotgun shooter, continued to insist that Caldwell was guilty. Caldwell had no choice but to try to convince the Board of his innocence.
Requiring the claimant to prove innocence is inconsistent with a fundamental principle of our criminal justice system: a person charged with a crime is presumed innocent until proven guilty. As the United States Supreme Court put it in 1895: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”
The U.S. Supreme Court recently addressed this issue in a case stemming from Colorado’s Exoneration Act. In addition to providing compensation for wrongful incarceration, the Colorado statute governed recovery of court costs, fees, and restitution paid by those wrongfully convicted and placed the burden of proof on the claimants. Two individuals whose convictions had been overturned sued the state to recover amounts they had paid as a result of their convictions, claiming that the state requirements violated their constitutional right to due process by unduly burdening their ability to recover.
Applying a well-established test, the Court (in an opinion by Justice Ginsburg) weighed the interests of the claimants, the risk that the procedures applied will result in erroneous denial of their claims, and the countervailing interests of the state. The Court opened its analysis by noting that the claimants must be treated as innocent: “Once [their] convictions were erased, the presumption of their innocence was restored.” Since the payments at issue were based solely on the findings of guilt, the state no longer had a basis for retaining the funds.
Colorado argued that if it is proper to require exonerees to prove innocence in order to receive compensation for their time in prison, placing the same burden on recovery of fees and costs must be valid as well. The Court rejected this argument on the grounds that the claimants were not seeking compensation: “Just as the restoration of liberty on reversal of a conviction is not compensation, neither is the return of money taken by the State on account of the conviction.” But the Court offered no explanation why this distinction should matter. In a separate opinion, Justice Alito questioned the distinction by asking rhetorically, under Ginsburg’s logic, “why shouldn’t the defendant be compensated for all the adverse economic consequences of the wrongful conviction?”
Every Supreme Court justice takes as a given the validity of the Exoneration Act as to claims for compensation for time in prison. None of the thirty-two states allowing compensation for wrongful incarceration (nor the federal law) require the state to prove guilt to prevent an exoneree from being compensated. Indeed, most compensation statutes are much more restrictive than Colorado’s (or California’s), for example, limiting claims to cases involving a gubernatorial pardon or DNA evidence. Still, the Court’s decision raises the question whether these limits are truly defensible as a matter of either constitutional law or policy.
The first consideration in the Supreme Court’s analysis is the interest of the claimant. The claimant has been deprived of their freedom, their relations with family and friends and their livelihood for the duration of imprisonment. If the wrongful incarceration drags on for many years, as in Caldwell’s case, the effects are magnified. Over time, relationships fade away. Family and friends die or move away, skills atrophy and the very ability to be gainfully employed may be lost. Monetary compensation cannot restore the years or repair the damage, but it may be the only means for the exoneree to support himself or herself. The claimant’s interest in the outcome is very high—likely far greater than the Colorado claimants’ desire to recover the relatively small fees and costs at issue there.
It is no surprise that under California’s rules, many claims for compensation fail. In short, the risk of erroneous deprivation of the claimants’ interests is severe.
The second consideration the Court discussed is the risk that procedures used will result in erroneous deprivation of the interest at issue. The prevalence of exonerations across the country shows that even under criminal procedures that (theoretically, at least) provide all constitutional rights to the defendant, including the requirement that guilt be proved beyond a reasonable doubt, innocent people are still convicted. The risk of error is exponentially greater in claims for compensation under statutes like California’s.
Luis Galicia’s case illustrates the significance of which party bears the burden of proof. While the officer who heard the testimony found Galicia’s showing sufficient, the reviewing Board ”had difficulty drawing any conclusions” about the evidence.” It was easy and natural to conclude that Galicia failed to make his case. Shifting the burden to the state would require the Board to rule for the claimant where evidence is inconclusive.
The nature of wrongful incarceration claims exacerbates the impact of placing the burden of proof on the claimant. The state does not provide representation for exonerees in their claims before the Board. As Senator Monning observes, most exonerees have few resources at their disposal before their convictions and even fewer when they are finally released. Exonerees like Caldwell, who served many years, have claims large enough to support contingent fee arrangements. The rest have few options for obtaining counsel. And in any contested case—like Caldwell’s—claimants face the full resources of the state Attorney General’s office.
Claimants are by definition facing a trial transcript that was sufficient to convince a jury of their guilt beyond a reasonable doubt. In some cases before the Board, evidence relied on by the prosecution in the criminal case may be excluded or may have been repudiated. Witnesses may be unavailable—in Caldwell’s case, the key prosecution witness, Mary Cobbs, died while Caldwell was in prison—and memories also fade. All these circumstances will tend to weaken the prosecution’s case, but none will prove the claimant innocent. The same effects hinder the claimant’s efforts to prove innocence. It is no surprise that under California’s rules, many claims for compensation fail. In short, the risk of erroneous deprivation of the claimants’ interests is severe.
The final consideration under the Supreme Court’s analysis is the government’s interest. In entertaining claims for wrongful compensation, the state’s only interest is financial. Compare this to a typical criminal trial where if a finding of “not guilty” is erroneous, a criminal escapes punishment. Yet, by applying the rigorous requirement of proof beyond a reasonable doubt, we signal that we are willing to accept this risk in order to minimize the risk of a greater harm: convicting an innocent person. If a claim for compensation for wrongful incarceration is granted in error, the calculus is different. The guilty party already either has or has not been punished, no matter the result of the proceeding. The only “harm” to be suffered by the state is payment of compensation to a guilty party.
It could be argued that an erroneous payment is not even harmful. The claimant, by definition, served time in prison without a valid conviction being made. Though no U.S. jurisdiction has done so, a government could decide, as a matter of policy, to compensate all those wrongfully incarcerated whether guilty or not. Such a policy might even save money. Providing compensation to all who were wrongfully incarcerated, regardless of whether the evidence shows they were innocent, might reduce the likelihood that those released will commit additional crimes.
In any case, the amounts at issue are vanishingly small compared to the cost of the prison system. The current California budget includes $11.4 billion for the correction system. To call the expenditures on exonerees a drop in the bucket would exaggerate their importance. A 2015 study by Berkeley Law provides a more useful comparison. The study looked at the state’s expenditures on the 692 individuals who were exonerated from 1989 through 2012 and found that incarcerating the exonerees cost the state $148 million (and this figure did not even include the cost of prosecuting the cases). Paying claims made to the Victim Compensation Board cost just $5 million—less than 4% of the costs already incurred by the state for those individuals.
If the State of California can devote so many resources to the task of sending citizens to prison and keeping them there for years, surely it can afford to compensate more of those who should never have been there in the first place.
Still, the Supreme Court made clear in the Colorado case it is not ready to require states to accept the burden of proof. In fact, the Colorado statute requires claimants to prove their innocence by clear and convincing evidence, a much higher standard than California imposes. Yet the same analysis used by the Court in finding the Colorado law unconstitutional as it applied to recovering fees and costs could be applied to the burden California places on people like Caldwell that seek compensation for the years they lost to a mistake by the state.
Of course, the legislature does not need to be constrained by the Supreme Court’s rigorous application of balancing tests and its adherence to precedent. The legislature can review the system and conclude, as it did in 2013, that the procedures in place are simply not fair. The legislature can decree that the current law places too great a burden on those whom the criminal justice system already failed once. Shifting the burden of proof would make a tremendous difference.
In the meantime, the cases drag on. Maurice Caldwell filed his claim for compensation in March 2013. The matter was heard before an officer of the Board on 9 May and 31 May 2017. On 1 September, the hearing officer issued his Proposed Decision: a denial.
The Proposed Decision is baffling. The officer acknowledges that at least seven witnesses supported Caldwell’s version of the events, while “only one strong witness” implicates him—the deceased Mary Cobbs. He brushes aside testimony from the NCIP attorney that Cobbs could not have seen the shooters from her apartment, as well as all the evidence that the police improperly influenced Cobbs—not only moving her out of the projects but also by paying for a trip to Disneyland. As for Caldwell’s witnesses, Marritte Funches confessed to shooting Judy Acosta, a conclusion supported by every witness, and swore that Caldwell was not involved. The hearing officer blithely concludes that since the district attorney never pursued charges against Funches, those statements must not be credible.
What does the hearing officer believe occurred on that night in 1990? He accepts the testimony that Caldwell was in a bedroom with his girlfriend at the time of the shooting, but notes that Caldwell ran outside and “it is unknown what occurred.” To find Caldwell guilty of Acosta’s murder, one would have to believe that Caldwell heard shots, dressed, left the apartment, picked up a shotgun, and ran out to the street, arriving in time to shoot a man fleeing from someone else’s drug deal gone bad.
But in this proceeding, the hearing officer had no need to determine whether Caldwell was guilty. Caldwell was already denied the presumption of innocence, so the hearing officer can rest his decision solely on the burden of proof. He concludes that none of the witnesses on either side “can comfortably be found reliable which is detrimental to Caldwell’s case since he has the burden of proof.” In summary: “None of these pieces of evidence show guilt but they raise further hurdles for Caldwell to show his innocence…. Caldwell has failed to meet his burden of proof.”
So long as the State of California imposes the burden of proof on those seeking compensation, the Victim Compensation Board will repeat that refrain. Individuals who served time in prison for months or years for crimes they did not commit, whether due to police misconduct, abuse of prosecutorial discretion, or simply witnesses who hope to gain an advantage by providing false testimony, will continue to be relegated to the fringe of society.
As for Caldwell, he will pursue the fading glimmers of hope: contesting the Proposed Decision before the Board and litigating his appeals. Any changes in procedure will be too late to make a difference for his life or to help him set a better course for his three children.
 Ken Garcia, “Mary Cobb, Genuine Hero, Leaves Legacy of Truth, Grit,” San Francisco Chronicle, 20 January 1998, http://www.sfgate.com/news/article/Mary-Cobb-Genuine-Hero-Leaves-Legacy-of-Truth-3015468.php.
 “California Commission on the Fair Administration of Justice Final Report,” 30 June 1998, 18.
 Benjamin Weiser, “Settlement Is Approved in Central Park Jogger Case, but New York Deflects Blame,” The New York Times, 5 September 2014, https://www.nytimes.com/2014/09/06/nyregion/41-million-settlement-for-5-convicted-in-jogger-case-is-approved.html.
 California Penal Code §§ 4900-4906.
 Table showing compensation statutes of the states prepared by The Innocence Project, https://www.innocenceproject.org/wp-content/uploads/2017/09/Adeles_Compensation-Chart_Version-2017.pdf.
 The corresponding federal law limited payouts to $5,000 until 2003, when the Innocence Protection Act raised the limits to $50,000 per year, and $100,000 per year on death row. California Commission, pp. 103-04.
 “California Commission on the Fair Administration of Justice Final Report,” 24-32.
 See https://deathpenaltyinfo.org/number-executions-state-and-region-1976.
 Data provided by the California Victim Compensation Board, 1 August 2017 (hereafter, “CVCB Data”). For reflection on this legislation nearer the time, see http://www.latimes.com/nation/la-na-exoneree-national-20141220-story.html and https://www.prisonlegalnews.org/news/2014/may/19/california-improves-compensation-process-wrongfully-convicted-prisoners/.
 “CVCB Data.”
 In the Matter of the Application of: Luis Galicia, Board Decision of 18 February 2016, 3. See https://www.victims.ca.gov/docs/pc4900/PC-4900-Denied-Galicia.pdf.
 California Victim Compensation Board, “Strategic Plan 2016-2018,” 1, victims.ca.gov/docs/reports/StrategicPlan2016.pdf.
 “CVCB Data.”
 Conor Friedersdorf, “Police in California Killed More Than 610 People Over 6 Years,” The Atlantic, 5 October 2015, https://www.theatlantic.com/politics/archive/2015/10/police-in-california-killed-more-than-610-people-over-6-years/407326/.
 In the Matter of the Claim of Timothy Atkins, Amended Proposed Decision, 16 January 2015, Exhibit B (transcript of the Board meeting), 14. Similarly, in a recent case where the underlying conviction was for arson, Ramos identified the fact that a mother and her two babies died in the fire as “the circumstances I took into consideration” in overruling the hearing officer’s recommendation that the claim be paid. In the Matter of the Application of: George Souliotes, Board Decision of 18 May 2017, 6.
 “CVCB Data.”
 Provided by the Office of Senator William Monning, 29 August 2017, used by permission.
 California Penal Code § 4903(a).
 Cal. Admin. Code tit. 2, §§ 644(c) (burden of proof); 641(a) (requirement of corroborating evidence).
 Moore v. Dempsey, 261 U.S. 86, 87-88 (1923); Herrera v. Collins, 506 U.S. 390, 400 (1993). The federal statute governing habeas corpus, 28 U.S.C. § 2254(a), specifies that a federal court may consider a habeas petition “only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.”
 See California Penal Code § 1473.
 In re Winchester, 53 Cal. 2d 528, 531 (1960): “Habeas corpus has become a proper remedy in this state to collaterally attack a judgment of conviction which has been obtained in violation of fundamental constitutional rights.”
 Coffin v. United States, 156 U.S. 432, 453 (1895). See In re Winship, 397 U.S. 358, 361 (1970).
 Nelson v. Colorado, 137 S. Ct. 1249, 1255 (2017), applying analysis from Mathews v. Eldridge, 424 U.S. 319 (1976).
 137 S. Ct. at 1257.
 137 S. Ct. at 1260-61.
 Maine requires a pardon by the governor, Maine Rev. Statutes § 8241; Missouri requires proof of innocence through DNA testing, Missouri Rev. Statutes § 650.058.
 In the Matter of the Application of: Luis Galicia, Board Decision of 18 February 2016, 3.
 A report by the Prison Policy Initiative found that the United States prison population had a pre-incarceration income 41% less than the average American. Bernadette Rabuy and Daniel Kopf, “Prisons of Poverty: Uncovering the Pre-Incarceration Incomes of the Imprisoned,” 5 July 2015, https://www.prisonpolicy.org/reports/income.html.
 The Ohio legislature is currently considering changes to its compensation statute that would allow exonerees to recover if their civil rights were violated, even if they are not able to prove innocence. Josh Sweigart, “Provision on Wrongful Imprisonment Axed, But May Get Second Life,” Dayton Daily News, 29 June 2017, http://www.daytondailynews.com/news/state–regional-govt–politics/provision-wrongful-imprisonment-axed-but-may-get-second-life/CMBTbW7aN3xbZca84knn0L/.
 The state could provide some or all of the compensation in the form of payments over time, which could be terminated if the claimant were to be convicted of a new crime. Texas has this provision. See Texas Civil Practice and Remedies Code, ch. 103.
 Associated Press, “At $75,560, Housing a Prisoner in California Now Costs More Than a Year at Harvard,” Los Angeles Times, 4 June 2017, http://www.latimes.com/local/lanow/la-me-prison-costs-20170604-htmlstory.html.
 “Criminal Injustice,” The Chief Justice Earl Warren Institute on Law and Social Policy, Berkeley School of Law (2015), https://static1.squarespace.com/static/55f70367e4b0974cf2b82009/t/56a95c112399a3a5c87c1a7b/1453939730318/WI_Criminal_InJustice_booklet_FINAL2.pdf.
 An argument to shift the burden of proof was made several years ago in a law review article. Daniel S. Kahn, “Presumed Guilty until Proven Innocent: The Burden of Proof in Wrongful Conviction Claims under State Compensation Statutes,” U. Mich. J. L. Reform 44 (2010): 123-68.
 In the Matter of the Claim of Maurice Caldwell, Proposed Decision, 14 August 2017, 24.
Peter Colby writes on social and political issues, drawing on his varied career experiences, and his work has been published in Anthropology Now. He has worked in land conservation for the last fifteen years and previously practiced litigation, real estate, and environmental law. Peter graduated from the University of Virginia and obtained his law degree from Berkeley Law, University of California.
Copyright: © 2017 Peter Colby. This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/