The unintended consequences of compensating the exonerated

January 30, 2014

I totally agree with Ilya’s post earlier today as a matter of simple justice: Wrongful convictions and incarcerations are disturbing and wrong and the victims deserve compensation from the state — a lot of compensation. If you ask me, a million dollars is probably not enough money.

But here’s what I worry about. Our current justice system doesn’t do a very good job of adjudicating the claims of those who are wrongfully convicted. Once somebody’s appeals are over, it is very hard to convince a court to set aside the judgment. Facts seem uncertain, prosecutors and judges “dig in,” and it is hard to sort out the true claims from the false ones. Moreover, the law puts a lot of weight on the state’s side in upholding the prior conviction. So in practice, many people are released only after the prosecutors office eventually admits that it made a mistake and/or cooperates in the exoneration.

The bigger the compensation that the state has to pay, however, the more reluctant agents of the state might be to cooperate in an exoneration. It depends a little bit on where the money comes from, but high compensation gives states an incentive to dig in. And of course if the state’s cooperation is important, wrongfully convicted people might be pressured to waive their right to compensation in exchange for the state’s cooperation in getting out of prison.

Now, thankfully, there are possible solutions to this problem. We might force states into a mandatory insurance scheme that forces them to spread the costs of wrongful convictions to avoid the incentive to dig in; or (ultimately the same thing) the federal government might supply the compensation. We might try to make sure that prosecutors have sufficient independence that they don’t care about the financial consequences of their actions. We might change the laws and/or the judiciary so that judges are more willing to let people out of prison even over the state’s strong opposition.

But all of these require broader institutional reform of the criminal justice system, and I don’t know what reform would be ideal or feasible. So while I agree with Ilya that is a “no-brainer” that the wrongfully convicted deserve substantial compensation, I think figuring out how to actually do it is hard. This is one of the many tragedies of our criminal justice system.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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