The case for compensating people who serve time in prison for crimes they did not commit

January 29

The Chicago Tribune has an interesting article on the difficulties facing people who have served prison time for crimes they did not commit. In some cases, it takes years for them to get their convictions annulled, even if the evidence of innocence is strong. In the meantime, their criminal records make it difficult to find housing and employment.

Basic justice suggests that wrongfully imprisoned innocent people should also be compensated for their suffering. Monetary compensation cannot fully repair the damage inflicted by years of unjust imprisonment. But it is a lot better than nothing. Unfortunately, 21 states provide no compensation at all in such cases. They include generally liberal states such as Hawaii, Minnesota, and Rhode Island, as well as conservative ones such as Alaska, Arkansas, and South Carolina. Many of the states that do provide compensation give very little. For example, Wisconsin law caps the total amount of compensation at $25,000, including attorney’s fees, no matter how long the unjustly convicted person has been imprisoned. New Hampshire limits total compensation to $20,000. Few Americans would be willing to spend even one year in prison in exchange for $20,000. There can be legitimate disagreement over exactly how to calculate the right amount. But the compensation provided to the wrongly imprisoned should at least be somewhere in the same ballpark as the actual harm they suffered.

The case for adequate compensation is particularly strong in cases where innocent people were imprisoned because of misconduct by law enforcement officials. In one of the cases described in the Chicago Tribune article, officials apparently went ahead with a prosecution for murder despite the fact that police records indicated that defendant was actually in police custody at the time the crime was committed. If this is true, it is a serious case of official misconduct.

But compensation is also morally required even in cases where innocent people were convicted and punished despite the fact that officials acted in good faith. Some number of innocent people will be convicted in even the best possible criminal justice system. Even the most ethical and competent police, prosecutors, judges, and juries will occasionally make unavoidable errors. When such mistakes are discovered, it is unjust to force wrongly imprisoned innocents to bear the full cost of the error. If these mistakes are unavoidable byproducts of a justice system intended to benefit all of society, then their costs should be paid by society as a whole rather than arbitrarily imposed on a few unlucky individuals.

The Fifth Amendment’s Just Compensation Clause, which requires the government to compensate people whose property is taken for “public use,” provides a helpful analogy. Even if the government acted in good faith and has a perfectly valid reason for taking your land – such as building essential infrastructure – they still have to compensate you for your loss. As the Supreme Court famously put it in Armstrong v. United States (1960), “[t]he Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” What is true of takings of property is also true of wrongful loss of personal liberty. Indeed, the latter type of harm is usually even more painful to the victim.

To be completely clear, I am not claiming that the Just Compensation Clause requires compensation payments for the wrongfully imprisoned innocent. The text only applies to “property,” not personal freedom. But the moral principle involved is similar. Whether or not the Constitution requires it, government should compensate innocent people who have been imprisoned for crimes they did not commit.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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