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Advocates not thrilled with new law to compensate wrongfully imprisoned

Gov. Gianforte made last-minute changes
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Posted at 12:21 PM, Jun 15, 2021
and last updated 2021-06-15 20:07:23-04

HELENA — Montanans who spent years in prison for crimes they didn’t commit now have a new path to get compensation for being wrongfully locked away – but those who fought for the law are less-than-thrilled about the final product.

“I really feel like it got stolen away at the end,” said Cody Marble of Conrad, who was exonerated in 2017 after spending multiple years in prison on a rape conviction.

Marble is talking about House Bill 92, which created a process through which the wrongfully convicted and imprisoned can get paid $60,000 a year for each year they spent in prison and $25,000 for each additional year on parole, probation, or as a registered sex offender.

Marble and other advocates for the wrongfully convicted worked on the proposal for almost two years, through an interim legislative committee and the 2021 Legislature.

But, in the final days of the Legislature, Gov. Greg Gianforte issued an amendatory veto of the bill, imposing some significant changes that the Legislature ultimately approved.

Now, anyone who pursues a claim under HB92 must sign away their right to sue the state or local prosecutors for civil-rights violations or other damages in court.

Before, the bill said if you sued over your wrongful conviction and won, you’d have to pay back the state any money you gained through the claim process.

The governor also wrote into the bill that the Montana county that prosecuted the wrongfully convicted person is responsible for 75 percent of any award through the claims process. In the original bill, the state covered the entire cost.

Amy Sings in the Timber, executive director for the Montana Innocence Project, told MTN News that change adds some uncertainty to the process, because the counties could end up challenging whether they’re responsible.

“I think the counties are going to assert they’re not the ones on the line,” she said.

The bill had been pitched as a way to compensate those wrongfully imprisoned in Montana and give them an alternative to suing the state for huge damages, possibly saving the state money in the long run.

Those who supported the original bill say the changes make it less likely that the wrongfully convicted will use the claim process.

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Rep. Rob Farris-Olsen, D-Helena.

“It’s not very useful to most people,” said Rep. Rob Farris-Olsen, D-Helena, who represented a Great Falls man wrongfully convicted in 2001 and who settled a federal lawsuit three weeks ago. “I don’t know why you wouldn’t try your luck in a federal civil-rights case.”

Marble has sued the state and Missoula County in federal court over his 2002 conviction, seeking damages. He told MTN News Tuesday he hasn’t decided whether he will give up his lawsuit and seek the compensation under the new state law.

In his April 28 veto note, Gov. Gianforte said the state “owe(s) it to wrongfully convicted individuals to help make their lives whole.”

Yet he also said the changes he proposed are needed to “protect Montana taxpayers from paying millions of dollars in damages.”

Rep. Bill Mercer, R-Billings, a former U.S. attorney who had urged Gianforte to veto the bill entirely, told MTN News that he supports the Gianforte changes, because he doesn’t think someone who seeks a claim for wrongful imprisonment should also be able to sue for damages.

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Rep. Bill Mercer, R-Billings.

“I don’t think it’s any different from any other type of civil litigation, with `release language,’ that says, in return for (the settlement), you are walking away from any sort of other claims,” he said. “Nobody is compelling the claimant to use this (HB92) mechanism. It’s all up to them.”

Sings in the Timber said those civil lawsuits are the only way to hold “bad actors” in the criminal-justice system accountable, and that while HB92 is designed as an alternative for the wrongfully imprisoned to get compensation, they shouldn’t have to forego their right to sue.

A half-dozen people wrongfully convicted and imprisoned in Montana may be eligible for the compensation under HB92, including Marble, she said.

Three weeks ago, Richard Burkhart, who was represented by Farris-Olsen and who spent 16 years in prison for the 2001 Great Falls murder he didn’t commit, settled his federal lawsuit against the state, city of Great Falls and Cascade County for $600,000.

He possibly could have received more through the HB92 process, but chose to take the settlement.