Suppose a man is arrested, convicted, and then incarcerated for a murder he did not commit. Suppose he spends decades in prison as his family, friends and the outside world move on without him. And suppose he is fortunate enough to then prove his innocence, to offer this proof to the court, and to have the court vacate his conviction and dismiss the charges. Paradoxically, if this man's conviction were set aside on the standalone basis of "actual innocence" in criminal court, he would be barred from recovering money with an "actual innocence" claim under the Court of Claims Act. You read that correctly: "Actual innocence" dismissals in criminal court are not a basis for "actual innocence" civil claims under the present state of New York law. The legislature's New Year's resolution should be to rectify this oversight immediately.

This statutory anomaly for New York's exonerees is a function of developmental pace. The criminal law in this arena has simply developed faster than the civil law. New York State passed its civil "actual innocence" statute in 1984. Known as "Section 8-b," the law, groundbreaking at the time, was based on a legislative finding that "innocent persons who have been wrongly convicted of crimes and subsequently imprisoned have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law." See Court of Claims Act §8-b(1). Such exonerees, the legislature added, "should have an available avenue of redress over and above the existing tort remedies to seek compensation for damages." Id.

In this spirit, Section 8-b allows exonerees to obtain compensation directly from the State in the New York Court of Claims when they affirmatively demonstrate their innocence and show, among other things, that their convictions were set aside and dismissed pursuant to certain limited avenues—namely, "paragraph (a), (b), (c), (e) or (g)" of the Criminal Procedure Law §440.10(1). See Court of Claims Act, Section 8-b(3). These provisions—call them "Predicate Dismissals"—allow defendants to set aside their convictions under a variety of circumstances, ranging from criminal courts lacking jurisdiction, to convictions secured through prosecutorial or judicial misconduct, cases involving defendants who were incompetent to stand trial when they were convicted, and cases where there is new and previously unavailable evidence that would have potentially affected the jury's decision. An actually-innocent claimant whose conviction was set aside through one of these avenues will remain a candidate for 8-b compensation. An actually innocent claimant whose conviction was set aside through a different avenue will be out of luck—a rule that courts enforce strictly. See, e.g., Kolnacki v. State, 8 N.Y.3d 277, 281 (2007) ("We have consistently held that nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary").