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Putting price on time of wrongly convicted

WASHINGTON -- The scar across Michael Austin's right cheek, from an inmate's makeshift knife, is the most visible reminder of his 27 years in a Maryland maximum-security prison for a murder that DNA evidence now says he didn't commit.

The other scars are the memories. How inmates preyed on new arrivals, a practice he once likened to "watching lions chasing one of those gazelles." How he was unable to attend his mother's funeral after her death from cancer. How his freedom so overwhelmed him at first that a routine errand -- going to buy a tube of toothpaste -- caused him to weep.

When Austin asks himself what it would take to make him whole, he has no answer.

"If they gave me a billion dollars, a trillion, none of that would buy back one minute -- one second -- of the life I lost," he said.

As DNA testing frees increasing numbers of innocents from prison, states across the country are facing a politically sensitive and morally complex calculus: What is the value of a life unjustly spent behind bars?

Although Austin, freed in 2001, says no amount of money can restore his 27 years, he plans to ask the state for compensation nonetheless. Maryland has a law allowing for compensation of the exonerated -- it has awarded a total of nearly $1.5 million to four wrongfully convicted people -- but no specific guidelines for what constitutes a fair settlement. Elsewhere, jurisdictions that have compensation laws, including 15 states and the federal government, vary widely in their definitions of an appropriate payout.

This year, Virginia passed a law that compensates wrongly convicted people 90 percent of the state's annual per capita income -- or about $30,000 -- for up to 20 years. Alabama pays a minimum $50,000 for every year of incarceration. New Jersey provides up to $20,000 per year, or twice the person's preprison salary, whichever is greater.

The wrongfully convicted can sue states without compensation laws, but such cases are usually time-consuming and difficult to win, legal specialists said. As for suing judges, juries, prosecutors, and police involved in a wrongful conviction, a plaintiff would have to prove malicious misconduct, such as destroying or planting evidence or taking a bribe in return for a guilty verdict, said Michael Milleman, a law professor at the University of Maryland.

The other option is to get the state's legislature to pass an individual compensation bill. "But getting a private bill is a political process," said Adele Bernhard, a law professor at Pace University who has studied compensation laws. "It depends on what senator you know."

When Virginia lawmakers took up the case of Marvin Lamont Anderson last year, they weren't sure what the state should pay.

He spent 15 years in prison before DNA evidence exonerated him of rape and sodomy charges in 2001. At the time of his arrest, he was 18, with dreams of becoming a firefighter. He was sentenced to 210 years.

Other inmates "wanted to mess me up real bad," he said. "They'd threaten me, try to get me to initiate a fight, to start something to keep me from getting out."

After hearing his story, some legislators thought he should get as much as $1.5 million. Others said he deserved a fraction of that. Finally, they arrived at a lump sum of $200,000 and payments of about $2,000 a month for life.

After Anderson's case, the Virginia legislature was accused of playing racial politics with the payouts. Anderson, who is black, and his family said that while the legislature dragged its feet on his case, it approved with little discussion $750,000 for a white man who had spent 11 years in prison -- four years less than Anderson.

This year, the state passed a law to bring uniformity to the payouts, basing them on the state's annual per capita income. It will also provide up to $10,000 in community college tuition.

Delegate Robert Tata, a Republican from Virginia Beach, said the legislature wanted to remove politics and emotion from the process. "Everybody will be treated the same," he said. "We don't want to be making this up as we go along."

But even that formula has critics. Bernhard said states that use median income as a standard are not only "chintzy" but insulting.

"Essentially, they're saying, 'We don't think you would have made more than the median income,' " she said.

So what is fair compensation?

"What's a prison rape worth?" asked Ronald Kuby, a New York lawyer who has worked on compensation cases. "What's missing your child's first day of school worth? Not being with your parents as they lay dying? Having your parents go to their graves with you branded a convict?"

It's not clear how much Austin will get. His attorney, Larry Nathans, would not discuss what his client would seek.

Governor Robert Ehrlich Jr., a Republican, pardoned Austin last year and said then that the board would look into compensating him. But he acknowledged it could be a difficult task.

"What's a year worth? What's six months worth?" Ehrlichasked. "It's very hard to quantify that."

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