Exonerated inmate misses state compensation by three days

JEFFERSON CITY, Mo. -- Lonnie Erby remained locked in a prison for 17 years and 27 days before finally winning his release after DNA evidence exonerated him. If only Erby had remained behind bars for a few more days, he could have qualified for nearly $312,000 from the state.

Legislation to be signed into law today by Gov. Bob Holden allows state compensation of up to $50 for each day a person -- later proved innocent by DNA evidence -- was incarcerated under a wrongful conviction.

But the law applies only to people released after Aug. 28, 2003.

Erby was released Aug. 25, 2003.

"It stinks for him not to receive compensation," attorney Vanessa Potkin, who had championed Erby's case, said Wednesday. "It's a commendable action by the state, but it's a day late and dollar short."

While praising Missouri for joining 18 other states that offer compensation to prisoners proven innocent, advocates of inmate DNA testing say Missouri's new law falls short in several regards.

Not only does it exclude some people based on when they were released, it also excludes anyone who was exonerated by methods other than DNA evidence.

And the payments are not an entitlement, but rather can be reduced, delayed or eliminated based on the availability of state funds.

In exchange for receiving a state payment, an exonerated inmate must give up the right to sue the state for further compensation.

"Most people enacted these statutes for the express purpose of benefiting the exonorees," said Adele Bernhard, a professor at Pace Law School in New York who tracks state laws on compensation for cleared inmates. "It doesn't sound like that's what Missouri is doing. It looks as though they're trying to protect themselves from potential lawsuits by offering token compensation."

Sen. Matt Bartle, who sponsored the DNA legislation, said supporters were fortunate to even include the compensation provisions in the bill -- the thrust of which requires all felons to provide DNA samples for inclusion in a database after Jan. 1, 2005.

Bartle, R-Lee's Summit, said he was unaware of Erby's release date when lawmakers crafted the bill, which in some earlier versions included no cutoff date for the compensation.

"There was no effort to exclude or include anybody," Bartle said. But "whenever you have any kind of date, you are always going to have somebody that just misses the cutoff unless you go with full retroactivity."

That's what many other states have done, Bernhard said. Additionally, many states with restitution laws apply them to any prisoner later proven innocent, not just to those cleared by DNA testing.

But Bartle said cost and political considerations would have made it difficult to pass a bill giving money to any prisoner cleared of a conviction at any time by any means.

A spokeswoman for Gov. Bob Holden said he was aware that the bill excluded Erby -- and some other exonerated prisoners -- from compensation.

"The governor's concerned about that and would like to find someway to assist on this," said Holden spokeswoman Mary Still, suggesting the restitution could perhaps be extended to more people during next year's legislative session.

Erby could not be reached for comment Wednesday. Now 50 years old, he has regained his job as an autoworker at a suburban St. Louis plant run by DaimlerChrysler Corp. He was convicted in 1986 of sexual attacks on three girls and sentenced to 115 years. But the DNA tests, which weren't available at the time, proved he didn't commit the crimes.

Potkin, who championed Erby's case as a staff attorney at the Innocence Project at the Cardozo School of Law in New York, said it was a "gross oversight" and "huge injustice" for Erby not to receive money from the state.

"This bill is created for men who will not benefit from it," Potkin said.