Fredrick Earl Bain stands with his two daughters.
Courtesy of Oregon Innocence Project
Oregon’s Department of Justice gave few indications Tuesday it is ready to change its approach to payouts for people wrongfully convicted of crimes, at least in the near future.
Lawmakers at this week’s Joint Committee on Judiciary meeting heard for the second time this year from people who say Oregon is going to any length to block payments to people who were imprisoned and later released when courts vacated their convictions.
“I am one of few people who have been through levels of hell that most people can’t even fathom,” exoneree Earl Bain told lawmakers. “I’m still not OK from all that.”
Bain, a disabled combat veteran, was wrongfully convicted in 2009 of sex abuse and spent six years in prison. He was pardoned by former Gov. Kate Brown in 2020. After a lengthy process with the state Justice Department, Bain reached a compensation settlement in July for $342,000.
In 2022, lawmakers passed state Senate Bill 1584, which requires Oregon to pay $65,000 per year for each year a person was wrongfully imprisoned by the state. The bill passed both chambers of the Oregon Legislature without a single vote against it.
“DOJ, they fought the compensation every step of the way,” Bain said, noting he settled for “pennies on the dollar” compared to what he would have been entitled to under the law because of the threat he felt he and his daughter could be exposed to through a lengthy court case.
“(We) suffered years of trauma that honestly made Afghanistan look good,” he told lawmakers.
Entry to the Oregon state Senate floor, March 1, 2024, at the Oregon state Capitol in Salem, Ore.
Kristyna Wentz-Graff / OPB
The state Justice Department has adopted a practice of challenging most claims under the 2022 law, arguing that people who have had their criminal cases overturned should have to prove they were likely innocent of the crime and not simply released due to legal maneuvering.
“The statute clearly states that the petitioner, meaning the person that’s bringing the compensation claim, has the legal burden of proving their case,” Kimberley McCullough, legislative director for the Oregon Department of Justice told lawmakers at a February hearing on the issue. She repeated that message Tuesday.
That legal burden has proven high, as evidenced by the cases the DOJ has chosen to challenge. Those include the case of Frank Gable, who was convicted in 1991 for the murder of Oregon Department of Corrections boss Michael Francke. Gable was exonerated by a federal court in 2019 after roughly 30 years behind bars. The federal court found Marion County prosecutors and Oregon State Police investigators used a slate of false testimony to secure the conviction. Despite those facts, and support for Gable by Francke’s family, Oregon continues to challenge any payment to Gable.
“If a prior court found the person innocent under certain circumstances or there was a statement by the governor, perhaps that’s a policy choice that the Legislature would like to make to simplify the statute,” McCullough said Tuesday, “but as it is right now, that’s not the standard in the statute.”
Representatives from the Justice Department said as of Tuesday there have been 52 claims of wrongful convictions under the state law. Just three of those cases have reached a settlement where an incarcerated person was paid, including Bain.
Janis Puracal is a founder of the Forensic Justice Project, which examined forensics used in Jesse Johnson's conviction. Puracal became interested in wrongful conviction cases and the role forensics play after her brother, Jason Puracal, was wrongfully accused of drug trafficking in Nicaragua in 2010.
Courtesy of Forensic Justice Project
Janis Puracal, executive director of the Forensic Justice Project, harshly criticized DOJ’s current approach.
“Here in Oregon, exonerees are being nickel and dimed,” said Puracal, whose brother was freed after being falsely accused of drug trafficking in Nicaragua.
Puracal noted that half a dozen exonerees, as well as families of victims, had tuned in to Tuesday’s hearing on the bill. Those included Jesse Johnson, an Arkansas man who was convicted of murder in Salem in 1998 by the same Marion County District Attorney’s Office leadership that locked up Gable. Johnson is the subject of a recently released podcast by OPB, “Hush,” and is widely believed to be innocent. Prosecutors dropped their charges against him in September after suggesting for two years that they planned to try Johnson again for murder.
Related: For more of Johnson's story, listen to Hush, OPB's newest podcast
Puracal said by essentially retrying criminal cases before doling out any compensation, the state agency is not only harming exonerees – most of whom leave prison with no money or access to social services – but also delaying justice for crime victims. She also noted that no one in Oregon had received a “certificate of innocence,” which exonerees can ask for under the bill after they prevail in a compensation case.
“Instead of reviewing that new evidence of innocence and seeing what everyone else saw,” Puracal said, “the lawyers at DOJ that have been handling these cases have been looking for loopholes in the compensation statute.”
During February’s hearing on the law, Laurie Roberts, a policy advocate at the Innocence Project, told lawmakers that when it comes to states with compensation laws, “Oregon is a very serious outlier right now.”
She acknowledged that some cases take longer than others to review.
“But we are not aware of any state that has passed a compensation statute and then immediately fought over 90% of the claims that are filed,” Roberts said.
Lawmakers on the Judiciary Committee pressed the DOJ representatives Tuesday and indicated they would like to make changes to the law so future cases settle faster.
Sen. Floyd Prozanski, D-Eugene, chairs the committee and noted that some lawmakers had taken a recent trip to Texas to review how that state has approached compensation for wrongful convictions.
“What we saw in Texas were individuals,” Prozanski said, “willing to state a mistake was made.”
Prozanski said changes to Oregon’s system may require the creation of conviction integrity units. Despite the criticisms, Puracal said she is currently working on other changes to Oregon’s law with the DOJ and those could go before lawmakers in their next legislative session.
Oregon’s current attorney general, Ellen Rosenblum, who oversees the Department of Justice and its approach to the compensation law, isn’t running for a fourth term. She will be succeeded by either former Oregon House Speaker Dan Rayfield, a Democrat, or Will Lathrop, a former prosecutor in Yamhill and Marion counties who topped the Republican ticket.
When asked via candidate questionnaires about wrongful conviction compensation, Rayfield said he’d want to learn more about the nuances DOJ attorneys are using to guide their approach to these cases. OPB filed a records request with the DOJ seeking any policy documents it uses to guide its lawyers for compensation cases, but was told the agency does not have any such policy.
Lathrop had fewer questions for the state’s top lawyers.
“I am in alignment with the Department of Justice on this matter,” he told OPB.