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April 7, 2015

"What’s the right way to compensate someone for decades of lost freedom?"

The question in the title of this post is the subheadline of this new lengthy New Yorker article about the aftermath of wrongful convictions.  Here is an excerpt:

One of the earliest arguments for financial compensation for the wrongly incarcerated came in 1932, from the Yale law professor Edwin Borchard.  In an influential book called “Convicting the Innocent: Sixty-five Actual Errors of Criminal Justice,” Borchard wrote, “When it is discovered after conviction that the wrong man was condemned, the least the State can do to right this essentially irreparable injury is to reimburse the innocent victim, by an appropriate indemnity for the loss and damage suffered.”  He noted, “European countries have long recognized that such indemnity is a public obligation.”  But it would be many years before the United States began puzzling through what constituted an “appropriate indemnity.”  It wasn’t until the first DNA exoneration, in 1989, that most states began to seriously consider compensation.

There is still no consensus about the value of lost time.  Missouri gives exonerees fifty dollars a day for time served, California twice that much.  Massachusetts caps total compensation at half a million dollars.  In Maine, the limit is three hundred thousand; in Florida, it’s two million.  The variation is largely arbitrary.  “If there’s a logic to it, I haven’t seen it,” Robert J. Norris, a researcher at SUNY Albany who has studied compensation statutes, told me.  In Wisconsin, no matter how long an exoneree has served, the state will pay no more than twenty-five thousand dollars — the same figure that its legislators established in 1979.  “They just never changed it,” Norris said. “They even amended their statute in 1987, but they didn’t change the amount.”  Most states levy taxes on payment.  Twenty states have no compensation statutes at all.

Fifteen hundred and seventy-five people have been exonerated in the U.S.  The best off are those whom Brandon Garrett, a professor at the University of Virginia School of Law who has written extensively on post-conviction litigation, describes as “the ones that win the tort lottery.”  These are exonerees who seek compensation through the courts, arguing that their fundamental civil rights were violated by the police or by prosecutors.  (The same legal principle is at issue in federal suits brought by people who have been shot by the police.)  In such cases, the potential damages are unlimited.  But the standard of proof is high.  “Police officers have qualified immunity,” Garrett told me.  “They can violate your constitutional rights — reasonably but not egregiously.”

April 7, 2015 at 11:18 AM | Permalink


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I'm inclined to link to this post.

Posted by: George | Apr 8, 2015 12:48:48 AM

The sole tool of the lawyer profession is punishment. It is therefore inherently ultra-hazardous in its ordinary use. But the lawyer is so stupid, and the error rate so high, that applying strict liability would end government almost immediately.

Instead, one should compare the conduct of the judge and of the prosecutor to that of other idiotic lawyers, in the form of professional standards of due care.

Ordinary malpractice doctrines should apply to the wrongly convicted. Make everyone liable to the plaintiff. They may buy insurance to protect their assets. Insurance should not cover intentional torts.

Posted by: Supremacy Claus | Apr 8, 2015 1:22:35 AM

In Texas, exonerees get $80K per year wrongfully incarcerated in a lump sum, and a like amount in a lifetime annuity. There are also some ancillary benefits - e.g., college tuition, they can buy into government healthcare.

It took a decade to get to that. At first it was $25K per year in a single lump sum (passed around the turn of the century). As the number of DNA exonerees rose and the issue became prominent, that amount was doubled. Then, after a mentally ill exoneree ran through his $ and ended up homeless pushing a shopping cart in Dallas, the state increased it to the current amount and set up the annuity piece. The higher amounts were supported by cities because of a tort reform element to TX law: if exonerees took the state compensation, they couldn't file civil suits.

Posted by: Gritsforbreakfast | Apr 8, 2015 6:52:45 AM

Grits. May the plaintiff refuse the Texas offer, and sue separately? The deal sounds low for torts payouts. Is the Texas offer taxable as income or is being held in a cage considered a physical injury, and not taxed as income? Taxation makes the deal too low. Are these features fully disclosed at the time of the settlement?

Posted by: Supremacy Claus | Apr 8, 2015 7:06:34 AM

Because most exonorees are criminals and drug addicts, a lump sum cold be like a death sentence if they go on a binge and die by overdose. How many exonorees have died of unnatural causes subsequent to release? The left wing lawyer will never study the effect of stupid government on people.

Posted by: Supremacy Claus | Apr 8, 2015 7:12:49 AM

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