Exonerees are turning to the private sector to provide them with urgently needed cash.
But with interest rates so high, it could end up being a new form of confinement.
Today, On Point: Finance companies have a new customer — the wrongfully convicted.
Guests
Ron Kuby, criminal defense and civil rights lawyer who has been practicing law for 40 years. During that time, he has represented many clients who’ve been wrongfully convicted.
Also Featured
Gerard Domond, exonerated after spending 29 years in prison.
Bradley Braun, CTO at Tribeca Capital Group.
Brad Lander, comptroller of New York City.
Jon Eldan, founder and executive director of After Innocence.
Transcript
Part I
MEGHNA CHAKRABARTI: Gerard Domond will never forget October 30, 2020.
GERARD DOMOND: You know, we had to go to the court. My mother went, my sister went, my grandkids went. And when I went to the courtroom and they say that I was innocent, it was a totally different feeling.
It feel like a cloud lift off my head, a burden lift off of me.
CHAKRABARTI: October 30, 2020 was the day that Domond was exonerated for a murder he never committed. The exoneration came after he’d spent 29 ½ years in prison.
DOMOND: And I was just so happy to have to hear the district attorney, say, “Mr. Domond, we apologize. Our office apologized to you.”
CHAKRABARTI: Apologies do not repair a life broken by incarceration. Nor return lost time with family, missed opportunities, the means to support oneself. So Domond sued the state and city of New York, believing justice would not be fully served until they repaid some of what had been taken from him.
DOMOND: Once [I’m] found not guilty, I’m not going to sit here and lie that I wasn’t thinking about it. I said, yeah, now I’m going to have some money. That’s the icing on the cake.
CHAKRABARTI: The lawsuit could potentially bring him millions of dollars. But litigation is a years-long process, and Domond who had next to nothing after leaving prison, needed money to start his life immediately.
DOMOND: It was a very hard transition. I didn’t have no money, no nothing. You know, I didn’t have a car. It took me a while to get to work. And I was living with my mother.
CHAKRABARTI: That’s when the financial sector stepped in. This is On Point. I’m Meghna Chakrabarti.
Gerard Domond was just 26 years old when he went to prison in 1989. He’d been convicted of the murder of Patrick Hinkson and sentenced to 25 years to life. At the time, Domond was married and was the father of young twins.
Hinkson had been shot in the head in a New York City nightclub parking lot. But on that night, March 23, 1987, Domond wasn’t at the club. He wasn’t even in the state of New York.
DOMOND: Me and my ex-wife and her mother, we went on a trip to go to church, a church journey revival, down in Seville, Georgia. And we went down there, and I remember clearly it was like around time of my birthday.
CHAKRABARTI: March 24th. Just one day after the shooting.
DOMOND: And while we was down there, we took pictures, and I was just down there having a good time going to church and enjoying the South.
CHAKRABARTI: Domond and his family returned home to Brooklyn on March 25.
Almost immediately, the police took him in for questioning.
DOMOND: Then they questioned me in the precinct for about two days. They say, they seen you in a club. You shot the guy in the club with you. I said, “No, that could not be me. I’m not two person. I’m only one person. And I was out of state.”
CHAKRABARTI: Domond was confused, bewildered. Why were the police accusing him? He had been almost 1,000 miles away on the night of Hinkson’s death.
Nevertheless, he was charged with second degree murder. When his trial began in April 1989, it was clear that the prosecution’s case rested almost entirely on one man: Francois Pierre.
Pierre had walked into a Brooklyn police precinct three days after Hinkson’s murder, and claimed he’d seen Domond shoot Hinkson after a disagreement over drug money.
No other witness could corroborate Pierre’s account, and Domond denies all of it.
DOMOND: And I’m not going to sit here and pretend that I’ve ever been a saint. Since I was young, I always get in trouble. I’m a troubled soul. I want to be accountable for my actions and pay for my crime, the s*** that I did. Not what I didn’t do. I didn’t do this.
CHAKRABARTI: Still, the jury found him guilty. Gerard Domond spent the next 29 ½ years in prison.
DOMOND: It seems like my whole life was just gone, my kids. Whatever I was trying to do to put them on the right path, to be successful in life. It was all going to be repeated, like, on some child growing up with no father, their mother’s a drug addict, start hanging out, like the hangout party. Can’t nothing good come out the situation unless you have a strong family background, somebody that’s going to take over and do your job for you. The job that I was supposed to do was taken from, as a father I should say.
CHAKRABARTI: Domond maintained his innocence throughout his incarceration. After multiple attempts, he was granted parole on August 24, 2016. He hired a new legal team after his release, and they determined that Domond had never received a fair trial. Because prosecutors had known that Francois Pierre, the only person to place Domond at the crime scene, was both a compromised and illegitimate witness.
So it was on October 30, 2020, that Gerard Domond received a full exoneration.
He was 55 years old. Had no work experience, no college degree, no money. He was hoping his lawsuit against New York would eventually bring him money, but in the interim, he had nothing.
DOMOND: I had to wait a long time, and I still didn’t have what I wanted. I was daydreaming about, If I have a few thousand dollars, a job. I got a job. It’s paying good, but I have a lot of expenses. Just the things that, you know, you’re playing catch up, but you don’t really have it, you know what I’m saying.
CHAKRABARTI: This is where Gerard Domond’s story becomes more than the infuriating story of a man wrongfully incarcerated for decades. Though that is enough in itself.
It becomes a story about how the financial sector has discovered a lucrative new market in the urgent financial needs of exonerees.
Domond was put in contact with a company called USClaims. It’s a so-called pre-settlement lawsuit funding company, and it offered him a $300,000 advance while he waited for his wrongful incarceration cases to play out.
DOMOND: Just having financial freedom, bro. For a person that been away so long, just to know ain’t gotta live from paycheck to paycheck.
CHAKRABARTI: Domond moved out of his mother’s place, bought a house, a new Mercedes, and gave money to his children – whom he hadn’t seen outside prison walls in almost 30 years, and who now have children of their own.
The advance carried terms that weren’t unfavorable to Domond. He wouldn’t have to begin making repayments until after any settlement money was granted. And if Domond didn’t win his case against the city and state for any reason, he would not have to return a single penny to USClaims.
Now, those terms mean big risk for companies granting funds to exonerees. So for them, ultra-high interest rates make the risk worth it.
In Domond’s case, USClaims charged him an annual interest rate of 32%.
In 2022, Domond won an $8.4 million settlement from the state and city of New York. He’d waited about two years for the result.
His repayment to USClaims was due immediately. Along with an additional $143,000 in interest.
Is this a story about predatory capitalism exploiting the wronged and vulnerable? Could be.
But Gerard Domond says it’s much more complicated than that. In his case, it was the free market that helped keep his head above water, as the state dragged its heels towards financial justice. Domond says he was happy to pay the 32% interest. Because getting that advance upfront, when he urgently needed it, was worth it.
DOMOND: It’s up to you. You can continue to live your life moderately until you get your money, or you can get money, and then you pay back when you get your bread. You don’t have to, this is a choice, not a demand. You know what I’m saying, this is a choice we made, the offer is there, ain’t nobody twisting your arm to take the offer.
CHAKRABARTI: That’s Gerard Domond. He was exonerated in 2020 after serving nearly 30 years in prison. Joining us now is Ron Kuby. He’s a criminal defense and civil rights lawyer. He’s been practicing law for 40 years, and he’s represented many clients who’ve been wrongfully convicted, including Gerard Domond. Ron Kuby, welcome to On Point.
RON KUBY: Thank you, Meghna, and happy to be here.
CHAKRABARTI: First of all, USClaims, the company that offered Gerard that advance prior to him getting his settlement from New York, they’ve been in this particular business about giving advances to the wrongfully convicted for about, a decade or so. What is it about the criminal justice system that’s changed, that’s opened up this market for these kinds of financial firms?
KUBY: In the past decade, we’ve seen this dramatic increase in findings of actual, factual innocence and convictions being overturned and indictments being dismissed, based on the fact that they simply got the wrong person. And that has opened things up to a plethora of lawsuits against both municipalities and sometimes state governments.
And as a result, there has been a corresponding increase in the need for people to obtain some funding immediately.
CHAKRABARTI: Now, is this brand, is this past decade different from, or an accelerated process from what we saw, say in the late ’90s and early 2000s when, I guess, first of all, DNA evidence was really the thing that broke the dam, or lack of DNA evidence in some cases.
But are also states changing their point of view in terms of how quickly they want to resolve the financial injustices, let’s say, that exonerees have faced?
KUBY: New York City certainly has changed its view on this. Instead of New York City fighting every claim for as long as they can, the New York City controller, the current controller and the controller before that, has put in a so-called early settlement process which is a pre-litigation process.
You don’t actually have to file a lawsuit and be subject to the very cumbersome and tedious process of litigation. You can settle the case early. But keep in mind, even early settlement, such as in Gerard Domond’s case, it took 17 months from his exoneration until he actually had his check in his hand.
CHAKRABARTI: You also call this kind of financial assistance from private, the private sector, a necessary evil for exonerees. And we’re going to talk about that when we come back. So Ron Kuby, stand by for just a moment. This is On Point.
Part II
CHAKRABARTI: Today we’re talking about the growing market of financial firms offering large cash advances to exonerees, or people who have spent sometimes decades in prison who were wrongfully convicted. And upon their release, they need money, which is not quickly forthcoming from the lawsuits they have filed against the states that wrongfully imprisoned them.
So where’s that money coming from? The financial sector, but sometimes at, or often, at interest rates in the 20%, 30%, even occasionally 40% bracket. I’m joined today by Ron Kuby. He’s a criminal defense and civil rights lawyer. He’s represented many exonerees. And Ron, when I describe it the way I just did, it sounds like a very morally compromised thing that these financial firms are doing, but that’s not necessarily the case.
You call this an evil, but a necessary evil. Tell me why.
KUBY: The necessary part is clear enough. Most people go into prison from poverty and get out of prison and go right back into poverty. And with the actually innocent it’s even worse than for the actually guilty. Because at least the actually guilty, when they’re released to parole, there are programs to assist them.
There’s an attempt to find them employment and some funding and get them back on their feet. With the actually innocent, there are no such things. And most of my clients literally go from upstate prison where they’ve been for 20 or 30 years in the morning, go down to the courthouse in the afternoon and are released by early evening back out into the street, and they have nothing.
So they need money, and nobody’s offering to give them any. Even though they have this very valuable asset out there. It’s not something that can be immediately liquidated. And the evil part is clear enough. That you end up frequently paying 100% or, $2 on the dollar for what you have quote unquote borrowed.
CHAKRABARTI: Yeah, so we’ll talk about how that math works in a moment. But Ron, just, can you put us in the shoes of these exonerees? First of all, just the experience of going from being imprisoned for decades to going through a long legal process, but the timeline that you just described from being in prison to being freed, being very tight on that day. The reentry must be quite a shock.
What it’s like, what is it like for them?
KUBY: Initially it’s just a realization as to how much they have missed out on. Starting with their families. Children are now grown, sometimes parents have passed on. Continuing into technology, most of my clients had never actually used a cell phone before. And then readjusting yourself to a world where things move very quickly, which they don’t in prison. And a world where confrontation needs to be dealt with in a manner very different than the way you deal with confrontation inside prison.
CHAKRABARTI: So given that, the cell phone stories, so impactful. How are the exonerees then finding out about these companies like USCapital that can offer them the advances? In Gerard’s case, since he was your client, can you tell me how he was put in touch with USCapital?
KUBY: Yeah, I was the one that did it. And I do that with most of my clients who don’t have a support structure when they get out of prison.
One or two historically have had families and other things. They were happy, middle-class victims of a wrongful conviction. They went back to their happy, middle-class existence and were able to survive without taking out a lot of these loans. But for the most part, people want stuff that they’ve missed out on. All of those years where ordinarily we’re building our lives, developing our professions or our trades or our skills, starting to make money, then making some more money, gradually rising up whatever ladder we’re on. Purchasing our own home and making comfortable lives for ourselves with our families, he missed out on all of that.
So they want stuff now. They want to take care of the people who had taken care of them in prison. Almost invariably, the first thing these men, and they are almost all men. The first thing they want to do is buy a house for their mothers.
CHAKRABARTI: Wow. Just to be clear, Ron, because when it comes to the criminal justice system and the financial sector, we want everything to be above board.
Since you said you were the one who referred Gerard to USCapital, or do you not have any financial relationship with USCapital?
KUBY: No. I’ve always made sure, I’ve never had a financial relationship with them. A long time ago, they actually offered me a job screening cases for them. And I said as long as you’re willing to accept the fact that I will always say everybody deserves as much money as they want, then I’m happy to do that job.
And they just laughed and said, “No, we’ll look for somebody else.” No, I have no relationship with them. I don’t get a kickback. I don’t get a percentage. The one thing USCapital does, which is vitally important is they cap the interest rate at 100%, no matter how long the case goes on. People, if they’re financially prudent, don’t have to settle for pennies on the dollar, because they’re running up this giant financing bill.
If they’re financially prudent, it gives them the money to fight their cases at some sort of leisurely pace, if that’s what they decide to do.
CHAKRABARTI: Okay. So just to be clear, when you say cap the interest rate, means USCapital is one company that says to the exoneree, “You will not have to pay back more than twice what you borrowed.”
KUBY: Correct.
CHAKRABARTI: Okay, good. Because, numbers can be little squirrely things, but we are talking about, a vast sum of money. You happen to be in the state that’s had the highest percentage of exonerees nationwide over the past decade plus. And because of that, the amount paid by the state of New York to exonerees has topped more than $1 billion.
So this is not an insignificant amount of money. And again, to emphasize, coming at a time of great need for these men, as you’ve said, who spent decades wrongfully imprisoned. So we wanted to learn a little bit more about how this worked and why these financial firms are, have been entering this market quite significantly over the past many years.
And Ron, by the way, I want to add that exonerees aren’t the only place in which financial firms are stepping in to fill that gap between a lawsuit and settlement. We’ve seen it in personal injury. We’ve seen it in medical malpractice and other areas, but we reached out to Bradley Braun.
Who’s chief technology officer at Tribeca Capital Group. They’re another company that offers settlement advances to plaintiffs in various cases, including exonerees. And Braun told us, frankly, that Tribeca makes money off the advances by charging high interest rates. On average for them, 35.5% annually.
BRADLEY BRAUN: Is there an ick factor? Yes, it’s unpleasant. Okay? But it’s also a business.
CHAKRABARTI: Tribeca Capital offers advances, not conventional loans, and that’s an important distinction. Because the advances are not subject to many federal banking regulations. And that means they can charge much higher interest rates.
BRAUN: The plaintiff is selling a portion of their proceeds. I like to call it an investment in a potential settlement. It’s like going to Wall Street and buying a stock. You could lose money, because it’s an investment. There’s no guarantees. It’s not like going to the bank and you have FDIC that’s going to make sure if the bank fails, you’re going to get something back.
Okay. So it’s a non-recourse. That’s how it’s termed, cash advance. Okay, they’re selling a proceed of their potential settlement. If there’s no settlement, they’re legally not obligated to repay.
CHAKRABARTI: So again, the exonerees do not have to pay back the advance if they do not win a settlement. Now because of that, some companies have charged interest rates as high as 40%, and that can be seen in states that have no restrictions on interest rates for advances, places like Maine, Nebraska, Ohio, Vermont, Missouri.
However, in West Virginia and Arkansas, interest rates for such lending are capped at 17%. And that’s why Braun told us Tribeca does not do business in states with those caps. The return just doesn’t justify the risk.
BRAUN: There’s no guarantees. With a home, there is a risk with the bank because the home could burn down.
They might not have insurance. There are the exceptions to the rules, but most of the time, there is a collateral that the bank could recover.
CHAKRABARTI: Absent that collateral, Tribeca is looking for clients with the strongest case possible. Exonerees that are virtually guaranteed to win their lawsuits. Since 2021, 231 exonerees applied for a settlement advance through Tribeca.
Less than a third of them were accepted by the company. And out of those accepted, Tribeca advanced them an average of $17,000. The highest, $300,000. Also since 2021, they haven’t recovered 100% of their principal. They have lost about 8% of it. But those losses are more than covered with those high interest rates they’re charging.
Now, obviously, exonerees almost never have the financial background to qualify for a conventional bank loan. It’s impossible to amass a great credit rating, a healthy savings account, an employment history, while incarcerated. Tribeca Capital, and other financial firms that are putting advances or offering advances to exonerees do not ask for any such information, and as a result, Braun believes their funds might be an exonerees only option.
BRAUN: I don’t even want to think what would happen to some of the people that we provided funds for. If they didn’t have the financial relief, there’s probably a good chance they would be convicted of a new crime, if they were left out on the street, and I don’t think I’m exaggerating.
CHAKRABARTI: That’s Bradley Braun, CTO of Tribeca Capital Group.
Now, Ron, I actually appreciated Bradley’s just candor in saying it may not feel good, but it’s a business. It’s also an intelligently run business, because I want to focus a little bit on the fact that not everyone who applies for one of these advances gets it. And in order to do that, can we just go back to Gerard Domond’s case for a little bit?
KUBY: Sure.
CHAKRABARTI: Because I’d love you to take a minute to explain. All of the malfeasance and wrongdoing that happened to Gerard in the course of his original trial, that pretty much once he was exonerated, led it to be an open and shut case, regarding that he was going to get a settlement. So without being too technical and too legally wonky about all of this, basically, as you said in the introduction to this piece, it was a one witness identification.
KUBY: That witness came with serious problems walking in. That is to say, he promised to tell the police who had done the killing, if the police would help him get a chain back, that he claims Gerard Domond stole from him. Gerard Domond didn’t even know this guy. It later turned out that the prosecution deliberately withheld crucial exculpatory information.
That is to say that Francois Pierre claimed that he was in the hospital because he had HIV. And at that point, the HIV/AIDS crisis was new and very frightening to everybody. In fact, he was in the hospital because he had a psychiatric breakdown. He was actively and floridly psychotic.
And the jury and defense lawyers never heard that information. Instead, they were told he was simply hospitalized because he had HIV. There were other things as well, but basically once Francois Pierre’s testimony kind of fell apart, it was clear that the case could not stand. And ultimately, by the time we settled the state case, we actually found out what happened, which further exculpated Gerard.
He had absolutely nothing to do with the shooting, with Hinkson, with any of it, and indeed he was in a different state when it all took place.
CHAKRABARTI: Ron, I want to just share a couple more details of the case because in the process of putting together this show, I kept telling our producer, Paige Sutherland, that I could not believe what had happened to Gerard’s case deserves a documentary all of its own, because there are things like Pierre had claimed a dozen other people had seen the shooting, but no other witnesses were ever found to corroborate him.
Blood had been found in another location, but a police officer threw it away before it was even tested. Pierre had been claiming that Hinkson had been shot between the eye, but the autopsy found that the bullet had entered the left side of his head. And also, he was facing charges of his own and got a deal from prosecutors for cooperating in the case against Gerard Domond. So many things, and the reason why I bring up all these details though, to take it back to the advances that exonerees are getting from financial firms.
Ron, do the exonerees cases have to be that clear cut in order for them to get the advances to help them through this very uncertain period right after they’ve been released from incarceration? Because as we heard a little bit earlier, Tribeca Capital only gives out a third, a loan to a third of the people who apply for it.
KUBY: I don’t want to speak to their criteria, but I will tell you, with the some dozen exonerees that I’ve represented, many of which have been funded, all of my cases have been that clear cut. There is virtually no risk to the funders from the cases, at least that I bring to them.
What else they fund, I really can’t speak to. But there’s, risk is approaching zero. These are virtually guaranteed to at least result in enough to pay off the loans plus the interest.
CHAKRABARTI: Okay so that’s an important point, because if the person is paying off, if the exoneree ends up paying off the loan plus the interest, but has very little settlement money remaining after that, it does make me wonder, it got them through that period of time until the settlement.
But in the long run, they’re not really experiencing the financial justice that they deserve. Is there any pressure, because of the high interest, for people to accept settlements that are lower than they might otherwise get?
KUBY: So much of that depends upon how much it is they borrow in the first place.
I had one client recently who had a payback. $1 million dollars, and he was quite conscious of the fact that the interest was continuing to run, and he settled for less than I thought he should. On the other hand, if you’re talking about people who are going to have mid to high seven figure settlement, sometimes even eight figure settlements, the fact that they owe $300,000 or $400,000, $500,000.
Is not that big of a deal. The other thing to keep in mind though, is these folks have no place to go. Nobody is going to extend credit or make a loan at normal commercial rates. And the people who are calling for more regulation. Which of course, is what everybody says, “Oh, they ought to do something about this.”
The people who are calling for that are not the good guys. They’re the insurance companies and people, lawyers who represent big corporations and really want to strangle plaintiffs. So plaintiffs settle for pennies on the dollar. There aren’t good guys here. There are just, everybody’s morally compromised at this point.
CHAKRABARTI: Ron Kuby.
KUBY: Except the exoneree.
CHAKRABARTI: Yeah. Stand by for just a moment, because we want to talk a lot more about really what this says about the criminal justice system, actually, and perhaps that the ingenuity of American capitalism is helping bridge a gap that shouldn’t actually be there in the first place.
So we’ll talk about that when we come back. This is On Point.
Part III
CHAKRABARTI: Today, we are talking about an interesting market in the financial sector and that is financial firms giving advances to exonerees or people who have been wrongfully convicted and ended up spending decades, sometimes, of their lives in prison. And these advances help the exonerees in the first year or two of their lives outside of prison. But it comes at a cost. A very high interest rate.
We’re joined today by Ron Kuby, who’s a criminal defense and civil rights lawyer. And Ron, a little earlier in the show, you had mentioned some activities by the comptroller’s office in the city of New York, specifically that the office has had a policy that seeks to settle wrongful conviction lawsuits quickly.
BRAD LANDER: First, there’s no amount of money you could give someone, for even a year, much less in some of these cases, 25 years wrongful incarceration, but once you know that that’s happened, that people are due a settlement, helping them get it as quickly as possible and not have to wait for it is great.
CHAKRABARTI: Brad Lander is New York’s comptroller, a.k.a. the city’s chief financial officer, and he says the office aims to reach wrongful conviction settlements within one year and 90 days. And to do so before cases get to trial.
LANDER: In this case, the facts and the law are already clear. Because in wrongful conviction cases, where a district attorney has set up a wrongful conviction unit and reviewed their cases, or just whatever, there’s been an exoneration that has been proven in court.
You already know the facts, that person was wrongfully convicted. Why make them go back to court, sue the city again, re-prove what’s already been proven in the case of their innocence and wrongful conviction? Spend a lot of money on lawyers, take a whole lot of time.
CHAKRABARTI: By the way, the quick settlement policy began with Lander’s predecessor, former Comptroller Scott Stringer.
Since 2016, New York City has had 64 wrongful conviction settlements. Roughly a third of them have been settled pre-trial.
LANDER: In fiscal year 2022, there were 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 total settlements. Of which five were pre litigation, totaling $25 million. So five out of 16 in ’21, it looks like it was two out of —
CHAKRABARTI: Since Lander took office in 2022, I love how he’s being exact with his numbers there.
He’s been able to cut down wait times for pre-litigation settlements to 10 months. In 2023 and 2024, thus far, his office has wrapped up two wrongful conviction settlements in only three months, a year faster than the intended deadline. Now, according to the nonprofit group The Innocence Project, nationally, the average settlement wait time can run to almost three years.
Lander says his office is able to settle cases pre-trial or more often pre-trial because his office simply has the resources to do.
LANDER: We have a team here of investigators and lawyers and we have a whole process. People file their claims and we’ve got a staff. Look, it’s a big city. We’re fortunate to have a really high-capacity city government. And our folks, obviously on a lot of these, they’ve looked at this kind of case many times before.
And so mostly what we’re doing is looking at comparable past situations and offering something that is in league with that past case.
CHAKRABARTI: And by the way, Lander says the team he has is well worth the investment.
LANDER: And on the one hand, that costs money to the city, but it actually saves the city a lot of money, because it’s much, every one of these that we can do this way.
It costs much less money than hiring a lawyer, outside counsel or having the law department litigated in court. So even for the city, it’s saving money. And then of course, for the plaintiffs, it just costs them so much more in court.
CHAKRABARTI: That was Brad Lander, comptroller for the City of New York. Now Ron Kuby, New York is trying to fast track these settlements.
Did you say a little earlier that’s not common or that they’re an outlier in this, compared to, excuse me, having a tough Wednesday, compared to nationally?
KUBY: As far as I know, New York City is the only municipality or entity in the United States that makes a large, upfront initial investment in reviewing these matters and trying to settle them pre-litigation.
Usually, the opposite is true. Like every bad insurance company in the world, they know they’re going to have to pay eventually, but if they can drag it out long enough, maybe the litigant, the plaintiff will accept pennies on the dollar, or maybe they’ll go out and commit some actual real crime and they’ll be incarcerated.
So their case is worth less, or maybe they’ll die a death of despair, or something else. There are all kinds of possibilities. If you just delay and delay. New York city’s taken a different approach, a much better approach. But let’s be clear, when they’re offering these settlements and they are substantial settlements, they’re seven figure settlements.
They usually discount them by 25%, 33%, sometimes 40% less than the plaintiff would get if they actually went through the whole legal process. So the city saves money. The claimant gets less money but gets it faster. And as a result, the claimant has less money they have to pay back to one of these funders.
CHAKRABARTI: Yeah. So it’s all sort of a juggling act in terms of coming up with the best outcome for the exonerees, right? When everyone might have slightly different incentives here. But Ron, so getting back to the core fact is that we’re talking about people who have spent decades of their lives wrongfully incarcerated.
Then they are exonerated, and they have nothing. So there’s this urgent need to have some sort of foundation to live a life after being freed from imprisonment. And that period of time can last a year if you’re lucky in New York, or three or plus more years elsewhere in the country. It makes a lot of sense to me that the financial sector and creative American capitalism has found this as a market.
Why are cities and states themselves offering a pad for the exonerees when it’s the city or state that, first of all, wrongly incarcerated the person?
KUBY: First, I think it’s just too complicated to work out financially what you’re going to give people, lend people, or invest in them, before you’ve had the opportunity to actually review their cases.
And second, I think there’s less impetus now, frankly, because we’ve reached what I will call peak innocence. It’s not by accident that most of the cases we’re talking about are cases from the ’80s and the ’90s, where there was mass incarceration and there was very little technology available to separate the actually innocent from the actually guilty.
You don’t see many of these wrongful conviction cases happily from the ‘10s or the ’20s. We’re always going to have some of them. But these massive numbers of exonerations are going to go down in the future. So there’s no great impetus to solve a problem that’s going to solve itself with the simple passage of time.
CHAKRABARTI: But point well taken. But I’m wondering if the person we talked to from Tribeca Capital also even admitted that there’s an ick factor here. Can’t, couldn’t that ick factor be overcome? If again, cities and states had, I don’t know, some sort of fund set up so that the exonerees could be guaranteed some sort of financial assistance upon leaving prison.
KUBY: Sure. And New York City has a model for that. We had the 9/11 fund where the decision was made at a federal level that everybody who suffered, the families of people who perished in 9/11 were going to get a financial settlement. Numbers were arrived at, often very generous. The offers were made quickly and initially, and if people chose to accept them and most people did, they received their settlement. If they chose to go to court, at least they had a baseline for the future as to what they were offered originally and they were simply hoping to get more because they didn’t feel that was adequate.
That, of course, requires a massive amount of capital. And I agree, certainly that the criminal legal system has managed to monetize the worst oppression imaginable, dragging somebody out of their lives, convicting them for something they didn’t do, incarcerating them for decades, while their family and friends and others think that they’re murderers or rapist murderers, horrible people, and then discharging them out into poverty.
But look, this is the same energetic system of flourishing capitalism that created the whole prison industrial complex to begin with. There’s dozens of upstate communities in New York that have been built around a prison. So it doesn’t surprise me that private equity has managed to step in.
It’s just wow, this, too. Is there nothing, is there no brutality and oppression that can’t be monetized?
CHAKRABARTI: It’s a good question, Ron. It’s at the core of this conversation, right? It’s not so much about the financial sector, I would say, exclusively. But just about, I would say, the brutality and repression that has met upon people’s lives in this country.
In a sense, throughout this conversation, I’m emerging on the other side with thinking, actually, the morally upstanding group here may be private equity. Because they are stepping in to provide a service that nobody else is, in an exoneree’s time of need. Why aren’t, let’s say, some wealthier foundations or non-profits or even banks themselves in this market, as well.
KUBY: I can’t speak for wealthier foundations. Certainly, there is enough capital out there for some of the not for profits, that they could bankroll this. And as to banks are notoriously risk averse. And the difficulty is, of course, they could hire people to evaluate the value of the asset.
The asset being the unfiled civil action. And they could make an assessment of the value of that asset, the various risk involved. And in a proper case, the bank could make that sort of a loan, but banks don’t like to do that. Banks like to have some sort of solid, real collateral, rather than what we described as inchoate or unrealized value.
CHAKRABARTI: I want to get back to what this means for the exonerees themselves. And to do that, we spoke to Jon Eldan, who’s the founder and executive director of After Innocence. It’s a nonprofit that provides reentry support for American exonerees.
And he said that as long as private finance companies are offering advances that are fully above board and the terms are transparent, he thinks it can be healthy and very helpful for exonerees.
But he warns that if exonerees do take the advances, they need to make sure they have a plan.
JON ELDAN: How much you need, how much you should take, and critically, how are you going to make that money last over the uncertain period of time between the day you take the money and when you get your settlement, which is an unknown.
We know the range, it’s not going to be 20 years. But it could be six or eight, and you may hope that it’s two or three and be wrong. So can this money last and tide you over? What is your plan?
CHAKRABARTI: Ron, do the exonerees get that kind of support in terms of it’s an overwhelming kind of almost burden and responsibility to suddenly have so much money fall into anybody’s lap, let alone someone who, as you said, has been completely cut off from society for decades.
KUBY: I always try with my clients to make a financial plan for them. I will hook them up with a banker or some sort of respected financial planner. Usually, the person who plans my own financial life, who at least I trust. Try to work out some sort of monthly payment maybe $10,000 a month or even $15,000 a month so they can live in some comfort.
Some large lumps, large-ish lumps, some maybe $50,000, $60,000 so they can buy the thing that they’ve always wanted. In Gerard’s, case Gerard Doman’s case, he bought a Mercedes. He always wanted a Mercedes. And he told everybody, his lawyer bought it for him. Really? Thanks, man. (LAUGHS) I get a lot of calls about that and try to keep them on some sort of a track.
On the other hand, you are dealing with people who may not have much financial sophistication or financial literacy, but they have been successfully navigating a system that is unimaginable in its brutality, and they don’t particularly want to hear, wait, you should use discretion here. When somebody’s offering them suddenly a quarter million dollars or a half a million dollars, their tendency is to want to take it and not want to hear somebody like me saying, hang on.
So it’s always a difficult conversation.
CHAKRABARTI: We have 30 seconds left, Ron. Underlying all of this, is the fact that there are people who have been wrongfully convicted and are languishing in prisons across this country. When you said peak innocence, are you optimistic that’s going to happen less with every passing year in America?
KUBY: I am, and some of it is due to police reform and criminal justice reform that’s been demanded and has been passed and implemented. And some of the rest of it is due simply to technology. When I started practicing law 40 years ago, it seems incredible to say that, none of the tools that are used to solve crimes today existed.
There was no DNA, there was no complex forensic, no cell phones, no cell phone towers, no closed-circuit cameras, none of that existed. And happily, technology today makes it less and less likely that there are going to be actually, factually innocent people put behind bars.
