Tuesday, December 18, 2007

Compensating the Wrongly Convicted

Suppose an innocent person is wrongly convicted and subsequently released after his conviction is reversed (based on new evidence that has come to light, for instance). He sues the government for having been wrongly imprisoned for several years. I take it as given that such lawsuits should be allowed; if you disagree, you needn’t bother reading the rest of the post. The interesting question to me is this: should the state be tried under a negligence or strict liability rule?

Under a strict liability standard, the state would have to pay compensation regardless of why or how the erroneous conviction occurred. Every reversed wrongful conviction would result in compensation. Under a negligence rule, the state would only have to pay compensation if its agents failed to meet certain minimum requirements: collecting evidence in a competent and thorough manner, following the rules of discovery, abiding by constitutional due process requirements, and so forth. If the state met all those requirements, and a wrongful conviction happened anyway, the state would be off the hook.

The best argument for a negligence rule is that it creates better incentives for the defendant. Yes, the state has responsibility to give you a fair trial, but the accused also has a responsibility to defend himself to the best of his ability. He needs to inform his lawyer about potentially exculpatory (but embarrassing) evidence, to find people who might provide him with an alibi, and so on. A defendant might fail to do these things if he believes he will ultimately be vindicated and paid for his time, too. He might choose not implicate other people – say, criminal associates who actually did the crime in question – for fear of inviting retribution.

The best argument for a strict liability rule is that it’s impossible to tell whether the agents of the state have really engaged in due diligence. The cops might have found, but neglected to follow, relevant leads – and we’ll never know because they didn’t even jot down the names. The crime scene investigators might have missed fingerprints or blood spots that could have led to other suspects, but we’ll never know because years later the crime scene has been thoroughly cleaned (or no longer exists). The police might have coerced or bought incriminating testimony, but we’ll never know because the witness won’t say so for fear of retribution or losing his quid pro quo. The negligence rule only works if we can specify and verify all the ways the authorities might screw up. Strict liability, on the other hand, gives them reason to do things right regardless.

Or maybe not. The threat of strict liability might actually induce worse behavior by the authorities; perhaps they would create or destroy evidence just to impede the reversal of wrongful convictions. Also, “the state” is not a singular entity; it has many agents. Under either rule, making the state – that is, the taxpayers – cough up money could have very little impact on the behavior of specific cops and prosecutors.

(As an aside, we could sue the cops and prosecutors instead of the state; but we would still have to choose between strict liability and negligence. Under strict liability, we would have to figure out how to apportion the damages among all the agents of the state in cases where no specific fault has been demonstrated. And the threat of having to pay such damages would make working for the state more costly – meaning much of the cost would still come out of the taxpayers’ pockets.)

I lean toward strict liability, on grounds that it’s more important to fix the state’s incentives than the defendant’s. The innocent defendant, knowing there’s a chance he’ll never be exonerated, cannot count on ever receiving compensation, so he has good reasons to do the best he can at trial. The state’s incentives are attenuated for the same reason. But I am not confident in this conclusion, for the reasons given above. I’m also curious to know the actual law in this area. Can any of you lawyers out there help me out?


Jadagul said...

I lean towards a negligence standard, because I'm worried about the state's incentives. If every reversed conviction carries penalties with it, then the state has an incentive to fight vigorously against ever releasing anyone. If it's possible for the state to release a convict without compensating him, it will be less reluctant to review the evidence and release the wrongly convicted.

Alan Gunn said...

How about strict liability with contributory fault as a defense? Seems to me it would combine the best features of each of your regimes.

Anonymous said...

I am afraid that the economics of the situation are far more complex. Given the reality of indemnification, itself necessary to attract competent officials to public service, those responsible for a wrongful conviction -- usually prosecutors or investigators -- do not actually pay the judgment. Instead, under either a negligence or a strict liability regime, the cost of the judgment is externalized to the taxpayers. Thus, the "deterrent" effect of either a negligence or a strict liability regime depends on the ability of the taxpayers to hold the wrongdoer politically accountable. That, in turn, presents a quite complicated problem. The government is subject to political discipline, not market discipline, and the political consequences of convicting the innocent may themselves provide sufficient deterrence without need of a damages remedy. Indeed, given that a damages remedy may itself prevent the government from spending the money in ways that will enhance social welfare far more than paying it to the plaintiff, the incremental deterrence achieved by a damages remedy may be more than offset by the social welfare loss if funds are diverted from, say, infrastructure improvements to the payment of a judgment.

Larry Rosenthal
Chapman University School of Law