Are Federal Exonerees Paid?: Lessons for the Drafting and Interpretation of Wrongful Conviction Compensation Statutes

58 Pages Posted: 8 Jan 2021 Last revised: 21 Jan 2021

See all articles by Jeffrey S. Gutman

Jeffrey S. Gutman

George Washington University - Law School

Date Written: September 10, 2020


In this third of a series of articles on wrongful conviction compensation statutes, Professor Jeffrey Gutman tackles the first statute attempted to be passed in the United States – the federal wrongful conviction compensation statute. Championed in concept by Edwin Borchard, it was in fact poorly drafted, and recommendations by Attorney General Homer Cummings to improve it were only partly successful. This Article retraces the long legislative history of the statute which is dotted with sloppy language and reasoning, unexplained amendments and an unfortunate focus on who was not to benefit from it, rather than who was. This tangled legislative history has resulted in two lines of cases, which either interpret it and the statute faithfully with poor results or rebel against it yielding better results as a matter of policy, but with dubious statutory support.

Based on his empirical research, Professor Gutman reveals that of 111 people listed in the National Registry of Exonerations as having been exonerated of federal crimes, only 2 have been awarded compensation under it. He demonstrates that a combination of unnecessary and ill-considered statutory language and an overreading of the legislative history have yielded results unmoored from Professor Borchard’s modest vision of the statute.

Professor Gutman argues that the often-misread legislative history’s concern about compensating those whose convictions were set aside on technical or procedural grounds has led several courts to misconceive the plaintiff’s burden of showing their innocence. This manner of approaching the question of innocence, what Professor Gutman calls “room thinking” requires petitioners to disprove all evidence of guilt – the grounds upon which there remains “room” for concluding that the exoneree may still be guilty. He contends that this approach is inconsistent with the established preponderance of the evidence standard and should be replaced by a familiar burden shifting analysis that will result in more balanced judicial decision-making in difficult cases.

Last, Professor Gutman explores an ongoing petition for a certificate of innocence litigated in Wisconsin which provides a unique opportunity to stress-test each of the three principal prongs of the statute. The result of that case, which could have foundered on any of the required prongs, is surprising. Examination of that case and a comparison to state wrongful conviction compensation statutes, results in Professor Gutman’s concrete proposals for the amendment of the statute and its administration truer to the visions of Borchard and Cummings.

Keywords: wrongful conviction, compensation, certificate of innocence, federal wrongful conviction compensation, Edwin Borchard

Suggested Citation

Gutman, Jeffrey S., Are Federal Exonerees Paid?: Lessons for the Drafting and Interpretation of Wrongful Conviction Compensation Statutes (September 10, 2020). Cleveland State Law Review, Vol. 69, No. 2, 2021, GWU Legal Studies Research Paper No. 2021-02, GWU Law School Public Law Research Paper No. 2021-02, Available at SSRN:

Jeffrey S. Gutman (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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