The Ethics of Compensating the Unjustly Imprisoned

The New York Times last week published the stories of two men, in different states, who were recently freed from prison after it was proven that they were wrongly convicted. Michael A. Green spent 27 years in a Texas penitentiary for a rape he didn’t commit. Thomas Lee Goldstein was locked up 24 years ago for a murder committed by someone else.

The lives of both men have been destroyed, obviously. The important question now is, who is accountable? What is owed to a human being who has been robbed of what should have been the best and most productive years of his life, and who owes it?

Both men will be getting some compensation from the state governments involved, though obviously no amount of money could make them whole: what would you accept in exchange for spending the years from 35 to 60 in a maximum security prison? Goldstein settled a lawsuit for nearly eight million dollars; Green is mulling an offer of $2.2 million from Texas, and may decide to sue to get more. 2.2 million dollars for 27 years in prison…let’s see, that works out to less than $81, 500 a year. Should he take the deal? I would not accept 2.2 million dollars to spend one year in jail, much less 27.

There is no good reason why someone imprisoned by the state for a crime they didn’t commit should have to sue in order to get just compensation, nor is if fair or just that anyone who has suffered such a catastrophe should  have to ponder low-ball offers from government lawyers devoted to minimizing a state’s penalties. The harm in such cases is obvious and to a significant extent, measurable. The only issue should be how the final bill is divided up among the accountable parties.

The possible accountable parties in such tragedies include:

  • Police and law enforcement officials
  • Witnesses
  • Experts and technicians
  • Prosecutors
  • Judges
  • Public officials
  • Defense attorneys
  • Juries
  • The government

Defense attorneys and juries must be left out of the equation. The flaws of the jury system are part of the package; we cannot have a system where jurors risk penalties for making a mistake. Defense attorneys who take on major criminal cases know they are fighting the odds, and adding the risk of future monetary damages should they lose and their client is later shown to be wrongly convicted would harm all criminal defendants by making it more difficult for them to find competent counsel.

Prosecutors are a special case, because the Supreme Court has declared that they cannot face personal liability. But there must be consequences for their negligence or misconduct. Right now, there is little accountability. The parties involved in a wrongful conviction, however, need to know that recklessness, carelessness, negligence, breach of duty, dishonesty or malice that cost a man or woman their freedom will have serious consequences, both for the innocent person sentenced to prison and the individuals and institutions that put them there.

The cases of Green and Goldstein are different. In Goldstein’s case, there is evidence of police misconduct. Green’s conviction was the result of the victim’s mistaken testimony.  Answering the question of what the loss of freedom has cost these men in monetary terms should begin with statutorily set minimum guaranteed compensation for each year spent in prison. It could be $1 million dollars or $5 million or another sum, but this portion of the compensation should have no relationship to who the wrongfully incarcerated individual is, what his prospects for success were before he was locked away unjustly, or how much he had been earning before the justice system failed him. A life, autonomy and freedom have intrinsic value no matter who the victim is.

Next, the state should contribute, on top of that amount, fair compensation for estimated lost wages; economic opportunity; enjoyment of life (loss of contact with family and friends); physical, emotional, and psychological damage; and hardship to family members and business partners. Again, the determination of this should not be an adversary process, but a carefully regulated objective process by qualified individuals who can be trusted to seek only fairness, not cost-savings for the government responsible or enhanced benefits for especially sympathetic victims.

This portion of the compensation ought to be determined without reference to whether the wrongful imprisonment was due to honest mistakes, bad luck, or genuine malfeasance. The point is that the system failed, for whatever reason, and a life, and probably many lives, were harmed as a result. A society based on the sanctity of life, liberty and the pursuit of happiness must be especially accountable when its inefficiencies, inattention or corruption takes away these rights instead of protecting them.

Negligence and malfeasance in the process requires punitive damages, added to the compensation described already. The government guilty of either or both should pay the victim the additional damages, and the responsible individuals should have to reimburse the government for an appropriate portion of it. Not all, though: taxpayers who tolerate incompetent and corrupt officials are complicit in the injustice their public servants perpetrate, and it is appropriate that they share the costs of the harm their representatives do. Still, the lying witness, the careless investigator, the dishonest prosecutor, the unengaged governor, and the biased judge should not be able to avoid some tangible and unpleasant penalty for their roles in taking away an individual’s freedom.

I’m not going to speculate on how much all of this will cost, other than to confidently say that it will cost a lot, and should. It should cost governments, officials and complicit citizens enough to focus the careless, the apathetic, the ambitious, the lazy, the corrupt and the malicious on the possible consequences to them if a defendant and fellow American is wrongfully convicted, not merely the consequences to the accused. No criminal justice system is perfect, but a society cannot afford to be complacent when the price of imperfection is ruined lives of innocent men like Green and Goldstein. We have an obligation to add to that price the costs of compensation, reparations and accountability.  If the traditional  standard that it is “Better that ten guilty persons escape than that one innocent suffer,” as English jurist William Blackstone stated it, is not enough to motivate us to be sure before we destroy a life in the name of justice, then the prospect of serious consequences when we are wrong can only help the system get better. Our willingness to accept those consequences, meanwhile, will ensure that future Greens and Goldsteins receive more than sympathetic newspaper articles and superficial compensation in exchange for the best years of their lives.

6 thoughts on “The Ethics of Compensating the Unjustly Imprisoned

  1. This discussion does not even begin to address the inequities visited upon numerous individuals who are incarcerated for months pre-trial before their charges are dismissed or they are acquitted.

  2. All states need to have innocence commissions. As far as I know, North Carolina is the only one that has one and it is far from perfect. These commissions should have the added responsibility of awarding compensation to the wrongly convicted.

    The problem with these large compensations is that there is only so much money in the world. When you look at the Fred Zains, the Joyce Gilchrists, and the Houston Crime Labs of the world, you quickly run out of money.

    I guess one side effect of such large compensations is that we might start holding the right people accountable. We have this strange phenomenon in the country that only people held accountable for their actions are the poor and powerless and the otherwise responsible people who make a simple mistake. Truly corrupt and despicable people, the truly irresponsible, and the completely incompetent are given either a pass or their own reality TV show.

  3. Jack, I am so grateful for this excellent analysis. Wrongful incarcerations, let alone the horrors of wrongful executions or the injustices to which John refers above, have been the main source of my distrust for the American legal system. And I am heartened by what Michael writes about North Carolina’s innocence commission. From your pen to Lady Justice’s mouth, though. How do we make these changes happen in the face of so much corruption, inattention, and ennui?

  4. Ah, Jack, I was hoping no one would think of a way to make insurance companies richer (to make up for their sad losses, one hopes, in health-care compensation), but I think you’ve come up with a whole new category of malpractice premiums. It throws fresh light on “witness protection.”
    I apologize for the foray into facetiousness. It is an important subject. I forget where I read an article, perhaps a year ago, in the Times?, concerning the fate of persons proven innocent (okay, jurist-purists: not-guilty) all of whom received laughably little or NO compensation whatsoever from the state involved — were often, in fact, left indebted to those who helped get them out — the final irony being that they were denied the use of the parole system for housing, jobs, the minimal interest and support given to “real” exes.
    That something is being done at all is good news, if not as you say enough. Your message to me re “taxpayers who tolerate incompetent and corrupt officials” is particularly cogent. The people at the top were placed there by the people at the bottom.

    • Thanks. I’m reading this is shock from a post I just read on “Above the Law” suggesting that one of the freed men was asking a lot in damages, given how lousy and insignificant his life was. That thinking is more pervasive than I would have thought. Ugh.

  5. Pingback: The Training Myth and Connick v. Johnson « Ethics Alarms

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