Compensation Under the Microscope: What Has Gone Wrong with Oregon\u27s Wrongful Compensation Statute?

Abstract

Oregon’s legislature passed one of the country’s most recent wrongful conviction compensation statutes in 2022. Not surprisingly, it borrows statutory structure and language from existing statutes that follow a litigation model in which a plaintiff files a claim for compensation in court and a judge (or jury) decides the case. In the nearly two and half years since passage, only three Oregon exonerees, of 27 listed on the National Registry of Exonerations who are potentially eligible, have received compensation, and two of those were compensated by settlement before even filing a complaint. The storyline of the Oregon statute is one of promise and disappointment.1 The compensation bill was introduced by a Republican lawmaker, Rep. Kim Thatcher, after talking to her handyman, John Loveless, an exoneree. It passed and was signed into law quite quickly. But, since then, advocates for the exonerated have complained that the Oregon Attorney General’s Office appears to be fighting most of these cases. This seems unfair to them because the plaintiffs have already obtained court orders setting aside their convictions. Rep. Thatcher was quoted saying, “That was not the intention. There was no intention to have to have a court battle.”2 This article examines the Oregon statute. We see that there are none of the unusual barriers to compensation that are sometimes found in other state statutes. We show the numbers of claims filed and what has happened to them. Ultimately, though, no one should be surprised about what is going on in Oregon. So long as statutes of this sort require plaintiffs or claimants to bear the burden of demonstrating their innocence of the crimes for which their convictions have been reversed or vacated, and the order vacating the conviction does not rest on a finding of innocence, the government can be expected to defend these cases vigorously