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Lawmakers approve funding for wrongfully imprisoned with gov's changes
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Lawmakers approve funding for wrongfully imprisoned with gov's changes

Gov. Greg Gianforte speaks at a press conference

Gov. Greg Gianforte speaks at a press conference with legislative leadership at the State Capitol on Friday, April 30, 2021.

The Legislature has passed a funding deal for compensating those imprisoned for crimes they didn't commit, although not quite the arrangement preferred after two years of bipartisan construction.

After wide success in both chambers since House Bill 92 was introduced, Republican Gov. Greg Gianforte last week sent the bill back to lawmakers with an amendatory veto, meaning legislators could pass the bill with his suggested amendments or the proposal would die.

The bill, a product of the Law and Justice Interim Committee's work since the 2019 session ended, would provide those wrongfully incarcerated with $60,000 per year spent in prison and $25,000 for each year spent under state supervision outside of prison. The compensation would come through a claim filed against the state. Lawmakers billed the payments as a way to avoid costly litigation after convictions were successfully overturned. 

Its passage into law however, came down to a few contingencies set out by the governor: states and the counties where the person was wrongfully convicted would both have to contribute to the compensation, with counites making 75% of the payment. And to be eligible for the compensation, the person cannot sue to the state for any additional damages through civil proceedings in federal court. 

"I am relieved to have the law on the books, (but) incredibly disappointed that the governor felt the need to put a bar on federal actions, which goes against the blood, sweat and tears in the ways all the stakeholders came together to make this bill the best as it could be," said Amy Sings in the Timber, executive director of the Montana Innocence Project, in a phone interview Monday.

Compensation for being wrongly imprisoned is one thing, Sings in the Timber said, but filing a civil action against the so-called "bad actors," like police or prosecutors who withheld evidence, is how someone can strike at accountability once their conviction has been overturned.

What remains to be seen, Sings in the Timber said, is how the cost-share between the state and counties will affect the claims that are filed as a result of the bill's passage. 

"There's not always a bad actor … Sometimes it's just a terrible mistake, someone missed something," she said. "In those instances it will be interesting to see how that cost sharing plays out when a county doesn't feel like it has it has any liability in something."

Democrats and Republicans alike urged its passage, with some pause to the set of changes that were conditional to escape the governor's veto pen. The state for years had accounts to help fund education services for people wrongfully imprisoned, but never funded them. Billings Democratic Rep. Kathy Kelker told the House floor last week seven people would be immediately eligible for compensation upon the bill's passage. Additionally, Gianforte's amendment included a 2023 sunset, meaning the Legislature will have to re-approve the compensation program again next session. In a letter paired with his amendatory veto, Gianforte said compensating the wrongfully convicted was, "as a society, it is the right thing to do," but said the next Legislature should review the new program to ensure it should be continued or revised.

"You can probably tell from the way I'm talking that they're not my absolute favorite but the importance of this bill is so high," Kelker, the bill's sponsor, told the House floor on Wednesday. "After its possible sunset then we can look at it again."

Rep. Barry Usher, R-Billings,

Rep. Barry Usher, R-Billings, speaks during a meeting of the Joint Rules Committee on Monday, Dec. 7, 2020, on the House floor of the Montana State Capitol.

Someone bringing a claim must file within three years of dismissal of charges or a finding of not guilty on a retrial, or a pardon based on innocence. Anyone convicted, imprisoned and the released from custody before July 1, 2021 has until July 1, 2024 to bring a claim.

Rep. Barry Usher, a Republican who chaired the Law and Justice Interim Committee, too asked lawmakers to pass the amended bill, but still disputed the counties taking a share of the liability. County attorneys are prosecuting state crimes, and sometimes the fault could lie with the state crime lab or investigations division of the Montana Department of Justice, Usher said.  

Not everyone was repelled by Gianforte's additions. Rep. Bill Mercer, a Billings Republican, said making the compensation program the exclusive remedy for those released after wrongful incarceration was the "single most important thing" about the governor's notes.

"That concern that we would not only allow someone to take the money behind door No. 1 and but allow them to sue us and seek money behind door No. 2 has been taken care of," Mercer said.

The House passed the bill on a 79-17 final vote, roughly the same margin as it passed before Gianforte's amendment. The Senate approved the amended bill 36-14. 

Gianforte had not yet signed the bill as of Monday.

Montana State News Bureau

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