Last Wednesday, a federal court upheld a lower court’s decision to clear the criminal record of Derek Tice, one of the “Norfolk Four” defendants who were wrongfully convicted of rape and murder in 1997. The lower court’s ruling was based on the belief that had Tice’s defense lawyers asked for his coerced confession to be deemed inadmissible in the original trial, a different verdict likely would have been reached.
Although three of the Norfolk Four received a conditional pardon by former Virginia Governor Timothy Kaine in 2009 and were released from prison (the fourth had already completed his prison sentence), the former sailors remained on probation and their classification as sex offenders did not disappear.
Unfortunately, for most wrongfully convicted individuals, exoneration does not necessarily equate to full freedom. Even though they are no longer behind bars, many exonerees have to spend additional time fighting to have their criminal records expunged.
Arthur Lee Whitfield, for example, spent more than 22 years behind bars for two rapes he did not commit before DNA testing excluded him as the perpetrator. Although he was released in 2004, Whitfield was put on probation had to wait nearly five years before he was officially pardoned by Kaine in 2009. As a result, under Virginia law, Whitfield was not eligible to receive compensation for the years he was wrongfully imprisoned until then. Additionally, Whitfield remained on the registered sex offender list, burdening him with the stigma of being a convicted criminal and making it extremely difficult to find and sustain employment.
Some states have included provisions to clear the records of exonerees within statutes providing compensation to wrongfully convicted individuals. California’s compensation law, for example, states that a judge must order case records to be sealed when a conviction has been set aside. That being said, the statute requires the wrongfully convicted individual to prove factual innocence, — typically established through DNA evidence — an extremely high standard of proof. Florida’s compensation statute includes a similar provision.
Although the federal courts made the right call in the Derek Tice case, it is time for states to recognize that exonerees should not have to continue to struggle for freedom post release. Aren’t the years they spent behind bars enough? Why should they have to devote more time, and almost always more money, to expunge records of crimes they did not commit? Including a criminal record clearing provision within a state compensation statute makes sense, as this should certainly be considered an essential component of any piece of legislation offering holistic or restorative assistance to the wrongfully convicted. Still, only 27 states have passed statutes to provide compensation and other forms of assistance to exonerees; most of these statutes are extremely inadequate and few even mention criminal records.
Individuals like Derek Tice and Arthur Lee Whitfield need help facing the freedom that exoneration provides, a freedom that cannot come to fruition without the provision of adequate compensation, social services and a cleared name. Last week’s ruling should be viewed as a sign that significant gaps in our ‘justice’ system still exist.