Friday, December 7, 2007
The New York Times had, on December 2, this story about some states' attempts to deal with compensation for wrongful conviction. Since 1989, there have been more than 200 prisoners exonerated for crimes they did not commit but for which they had been convicted, sentenced to prison, and served time. Of those exonerated, almost 40 percent have received no compensation for their wrongful imprisonment. Since 200, 22 states and the District of Columbia have instituted schedules for compensation. To quote the article from The Times, "Wisconsin provides $5,000 a year up to a maximum of $25,000 total. California offers $100 a day. Tennessee provides up to $1 million total. 28 states offer nothing -- including states with multiple cases of discredited convictions -- forcing former inmates to sue in state or federal court. There they have the difficult task of providing bad faith or intentional misconduct by authorities."
If those lawsuits are successful, they can result in large compensatory amounts. William Gregory, for instance, was wrongfully imprisoned for seven years in Kentucky, sued the Commonwealth of Kentucky when he was released, and won a judgment for $4.6 million.
This would be a fascinating issue to take on in a research article. Which mechanism is better suited to provide appropriate compensation -- private litigation by the exonerated prisoner or compensation scheduled by the legislature? Might there best be a hybrid of private litigation and a minimum amount of scheduled compensation? Ought there to be, instead, a governmental commission to evaluate each case individually? And how ought damages to be determined?