tag:blogger.com,1999:blog-3829599.post6562083954094419510..comments2024-01-28T00:20:40.933-08:00Comments on Agoraphilia: Compensating the Wrongly ConvictedUnknownnoreply@blogger.comBlogger3125tag:blogger.com,1999:blog-3829599.post-90832478050460419302007-12-19T20:58:00.000-08:002007-12-19T20:58:00.000-08:00I am afraid that the economics of the situation ar...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.<BR/><BR/>Larry Rosenthal<BR/>Chapman University School of LawAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-3829599.post-31163849402289853612007-12-19T07:57:00.000-08:002007-12-19T07:57:00.000-08:00How about strict liability with contributory fault...How about strict liability with contributory fault as a defense? Seems to me it would combine the best features of each of your regimes.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3829599.post-56285715658634339982007-12-19T01:53:00.000-08:002007-12-19T01:53:00.000-08:00I lean towards a negligence standard, because I'm ...I lean towards a negligence standard, <I>because</I> 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.Anonymousnoreply@blogger.com