In a thoughtful recent post, co-blogger Will Baude agrees with the main thrust of my argument that innocent people who serve time in prison should be compensated for their suffering, but argues that there might be negative unintended consequences. Will’s main concern is that the prospect of having to pay compensation may make prosecutors resist efforts to exonerate the innocent more forcefully than they would otherwise. In my view, this is unlikely to be a major problem, because the compensation would likely come out of the general public fisc, rather than from the prosecutor’s own salaries or even their departmental budget. And because it is unlikely that the number of people exonerated will be very large, the impact on the overall government budget will probably be too small to incentivize higher-level officials to resist exoneration more than they otherwise would. To the extent that the prospect of compensation does affect official incentives, it could potentially also have the beneficial effect of leading prosecutors to be more careful about convicting innocent people to begin with.
Will also worries innocent people could be pressured into agreeing to forego compensation in exchange for official cooperation with their efforts to annul their convictions. This certainly could happen. But even if it does, it would still leave convicted innocent people better off than they would be otherwise. In this scenario, the existence of a compensation requirement at least enables them to get a quicker exoneration than they would have otherwise. That often has great value for them, since a person with a criminal record often has difficulty finding housing and employment.
Finally, it is worth asking whether either of the issues raised by Will has been a genuine problem in those states that already provide substantial compensation for the exonerated, or in the federal criminal justice system. I am not aware of any evidence suggesting that it has been. However, I welcome correction by those with greater expertise in criminal law.