Editor’s note: This story was originally published by Mountain State Spotlight. Get stories like this delivered to your email inbox once a week; sign up for the free newsletter at https://mountainstatespotlight.org/newsletter
By Ian Karbal, Mountain State Spotlight
On Memorial Day, for the first time in two years, Jason Lively was back in West Virginia to visit family and his father’s gravestone in McDowell County.
It took him that long to bring himself to return to the state where the justice system wrongly sent him to prison for life. He served more than 14 years, much of it in solitary confinement. And since his release, he’s been petitioning the state to give him what he feels he’s owed: restitution for his lost years.
“They’ve screwed me over since day one, put me in prison,” Lively said. “Nobody’s even said sorry.”
Lively’s exoneration was a major victory and massive news story. He was convicted of murdering a beloved McDowell County community figure in 2006, but the conviction was overturned 14 years later due to inaccurate forensic reports and testimony that was later recanted.
But Lively has yet to see a dime of compensation from the state. For the last few months, he and his lawyers have been fighting the state Attorney General’s Office for the right to even bring the case in the only venue that they believe offers them a shot. Instead of going through the courts, they’re asking the Legislative Claims Commission.
Constitutionally, the state of West Virginia can’t be sued, with rare exception. So the claims commission was created to give people who have been harmed by legally immune government bodies a place to seek compensation.
A recent legal maneuver by Lively’s lawyers may end the deadlock, and Lively may soon get a chance to argue his case for restitution. But in the meantime, the slow gears of the justice system have caused Lively a lot of pain.
“There’s no way a man can come out of prison, doing any length of time, unless he has a tremendous family,” he said.
It’s hard to call a man who spent the majority of his adult life in prison for a crime he didn’t commit “lucky.” But that’s how Lively felt when he got out of prison in 2020.
After his release, Lively moved in with his fiancée, Billie Blankenship, in North Carolina. The two were friends in high school, and reconnected over letters and phone calls while he was in prison. Lively’s mother and extended family were able to help him out financially, even as he was having trouble finding work and paying bills.
“For the longest time, I was just grateful, just so grateful to everybody,” Lively said. But as his fight to get restitution dragged on, anger crept in.
“It’s like they ain’t even trying,” Lively said of West Virginia officials. “Everybody knows what they did [was] wrong.”
Wrongfully convicted people in West Virginia can’t sue the state for compensation because courts and judges have broad immunity from lawsuits. The only legal venue available to most is the Legislative Claims Commission, which was established for exactly that reason.
The three-person commission can hear a case just like any other court, and can recommend money be issued by the legislature for “moral obligations:” payout for a person who was wronged by the state when they don’t have any other available ways to recoup that money under the law.
When Lively brought his case to the commission, Attorney General Patrick Morrisey’s office argued that Lively’s petition should be dismissed there and taken to court, saying that was a more appropriate venue after the state’s insurer said they would cover any resulting payout.
It took months, but eventually Lively’s lawyer got the Attorney General’s Office to withdraw their motion to move the case by amending the initial complaint, making it clear that the claims commission was the only place that could serve his client justice.
A spokesperson from the Attorney General’s office refused to comment because the case is ongoing.
Even if Lively succeeds in arguing that West Virginia owes him money for the 14 years he wrongly spent behind bars, he will likely have to wait at least another year to see any compensation. If the claims commission recommends he receive compensation, that request will be sent to the Legislature, which has the ultimate say on whether or not Lively is paid, and how much.
Lonnie Simmons, a Charleston attorney who has handled a number of wrongful conviction cases before the claims commission, says that the process is always long.
“That’s just part of the process,” Simmons said. “I guess I’m very accepting for how long it takes, because I know if it weren’t for the fact that the Legislature had created this [claims commission] as a possible remedy, there wouldn’t be any remedy.”
This lag in getting restitution out of the justice system can have serious consequences for the economic prospects and livelihoods of people released after wrongful convictions.
Andrew George, Lively’s lawyer, said he represented one Maryland man who was wrongly convicted and was experiencing homelessness, unable to find work after his release.
For Lively, the job prospects were slim after he got out of prison. Before his time behind bars, he was a coal miner. Even though he was exonerated, a Google search of his name leads to news articles linking him to a murder charge, and documenting his past issues with substance abuse.
His luck eventually turned around. Shortly after getting out of prison, his handiwork fixing up a trailer caught the attention of a salesman at a local motorcycle shop. When the man heard Lively’s story, he offered him a job in construction.
Now, all Lively can do is take things one day at a time. If he receives his compensation, he hopes to buy an RV and travel the country. That’s something he never dreamed would be possible sitting in a cell, and he hopes the experience will make up for some of the years he spent locked away.
Reach reporter Ian Karbal at iankarbal@mountainstatespotlight.org.
