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Mass. should compensate those wrongfully convicted

Kevin O'Loughlin is suing the state for wrongful conviction after he spent four years in prison for a rape he says he did not commit.

Mark Schand spent 27 years behind bars before his wrongful conviction was overturned. He had been found guilty of fatally shooting a 25-year-old woman outside a Springfield nightclub in 1986 and sentenced to life in prison without parole. Schand had always maintained his innocence and pleaded not guilty. For years his lawyers argued the evidence was faulty, that witnesses had been coerced, and that he was 30 miles away, in Hartford, the night the crime was committed. In 2013, thanks to the legal help of a nonprofit that investigates wrongful convictions, Schand became a free man after a judge granted him a new trial and Hampden County prosecutors dropped the murder charge.

Happy ending? Not so fast. Schand wanted fair relief from the state for robbing him of half his life. He missed raising his three sons and, even after his release, was unable to support them financially. In 2004, the Legislature approved a wrongful conviction compensation law to indemnify people like Schand with up to $500,000. But, as detailed in a recent report from the New England Center for Investigative Reporting, published by the Globe, the legal path toward restitution is long and replete with unnecessary barriers.

The main problem is that the process is designed to be lengthy and confrontational. While other states that offer indemnification for unjust incarceration appoint boards or a commissioner to decide whether the former prisoner deserves compensation, in Massachusetts the case is decided in Superior Court. That means people like Schand, who are already coming out of lengthy legal cases after getting a conviction overturned, have to go through yet another examination of their case with another set of depositions, discovery, and legal meetings to prove their innocence with clear and convincing evidence. The process can last two or three years before they see any benefit.

Another issue is eligibility: Not everyone who has had a conviction vacated is entitled to get paid by the state. For example, the law bars awarding compensation to those who originally pleaded guilty to their crime and those whose cases were vacated because of a legal matter. This can potentially disqualify those who are falsely accused but are then pressured into taking guilty pleas by prosecutors or who get bad legal advice. Instead, only people who had their convictions overturned on grounds that point to innocence, or who have received full pardons, are eligible. That’s a troubling high burden on defendants.


It’s clear people like Schand deserve some compensation. And yet, when they’re released, they’re not even entitled to the typical post-release assistance offered by the state Department of Correction, such as job training, job placement programs, or housing assistance. The good news is that state Senator Patricia Jehlen, who sponsored the compensation statute 12 years ago, is writing legislation to fix the statute and make it easier for people to receive restitution. The state also needs to offer more direct financial support to individuals who’ve lost years of their life to prison, with no arbitrary cap. One quick fix is to follow the Texas model, where the wrongfully convicted get up to $80,000 per year of incarceration, without a $500,000 cap.


Maybe then, when legislation is strengthened, it won’t be too late for Schand to get relief. He filed the compensation claim nearly three years ago, and his case has been snarled up in court. His trial date is set for April 3.