Michigan needs $7M to pay wrongfully convicted, avoid going into debt

Beth LeBlanc
The Detroit News

The state of Michigan is running short of cash in its Wrongful Imprisonment Compensation Act fund as about $9 million in claims from formerly incarcerated individuals is coming due. 

The fund is expected to have a balance of about $1.2 million in the next 30 days — a $2.7 million dip from the $3.9 million balance at the end of 2020 — and the state has about $9 million in claims pending in the state Court of Claims.

“That means reviewing any of several of the outstanding claims would put the fund in the red,” said Lynsey Mukomel, a spokeswoman for Attorney General Dana Nessel’s office. 

Detroiter Marwin McHenry, center, was the first exonerated prisoner to receive money under the Wrongful Imprisonment Compensation Act.

The Department of Treasury has requested about $7 million in supplemental funding to tide the fund over and avoid having it go into debt until the state passes next year’s budget. 

The state House has included the $7 million in its proposed $13 billion supplemental bill, but the Senate has yet to propose its own supplemental plan. And even after both chambers reach an agreement, it will likely take some time to negotiate the final funding bill with the governor. 

Past supplemental negotiations have dragged on for weeks and key spending priorities were vetoed because of disagreements between Democratic Gov. Gretchen Whitmer and the GOP-led Legislature. 

The Wrongful Imprisonment Compensation Act, enacted in 2016, requires the state to pay individuals who are wrongfully convicted $50,000 for each year they spent in prison. To claim the compensation, the individual must sue the state in the Court of Claims, where a judge determines whether they meet the qualifications for compensation.

Between August 2017 and January 2021, more than $22 million had been paid to wrongfully convicted from the fund. But the effort has run into money flow issues before.

In 2019, Nessel raised concerns about funding for the program after the state wasn't able to pay some claims because the program’s balance dropped from about $6.5 million since its 2016 creation to $323,800 in March 2019.

The dwindling balance prompted the Legislature to allocate $10 million into the fund and require Nessel to report the balance on a quarterly basis so it could be replenished if needed.

There is also pressure to expand the qualification for tapping the compensation fund. 

In three years, seven individuals have challenged provisions of the law and sought relief in the Michigan Supreme Court, but none have so far been successful. The appeals have ranged from challenges to a part of the law that gives cash to people whose cases were overturned because of new evidence to  arguments over whether someone should receive compensation for time spent in jail before trial.

Nessel's office, after fighting one claim from a wrongfully convicted individual in the Court of Claims and state Court of Appeals, recently decided to switch its position before Michigan's high court. Nessel's office's understanding of what constituted new evidence had evolved to include testimony in pre-trial hearings that wasn't used at the actual trial, Assistant Attorney General Robyn Frankel indicated.

Financing issues are expected to compound as the number of conviction integrity units increases. The Wayne County Prosecutor’s Office started its own unit in 2018, the Attorney General’s office in 2019 and Macomb, Oakland and Washtenaw prosecutors announced plans this year for similar units.

The Legislature should prepare for the prospect of additional exonerees and more compensation claims with the increase in conviction integrity units, said Megan Richardson, a clinical fellow at the Michigan Innocence Clinic at the University of Michigan. 

“The sheer number of filings that could be made — that wasn’t anticipated,” Richard told The Detroit News recently. “Does the fund even have enough money to pay that out?”