CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, March 16, 2010

Rosenthal on Damages for Wrongful Convictions

Rosenthal_Lawrence Lawrence Rosenthal (Chapman University - School of Law) has posted Second Thoughts on Damages for Wrongful Convictions (Chicago-Kent Law Review, Vol. 85, No. 1, 2010) on SSRN. Here is the abstract:

After the DNA-inspired wave of exonerations of recent years, there has been widespread support for expanding the damages remedies available to those who have been wrongfully accused or convicted. This article argues that the case for providing such compensation is deeply problematic under the justificatory theories usually advanced in support of either no-fault or fault-based liability. Although a regime of strict liability is sometimes thought justifiable to as a means of creating an economic incentive to scale back conduct thought highly likely to produce social losses, it is far from clear that the risk of error is so high in the criminal justice system as to render this rationale applicable. Moreover, because police and prosecutors respond to political and not economic incentives, the eonomic rationale for strict liability is unsatisfactory.

Even viewed as a form of social insurance, mandatory compensation is problematic. Because compenation is funded by the taxpayers, it represents a highly anomalous wealth transfer from those most in need of government assistance to the wrongfully convicted. Given the many competing demands for scarce public resources, it is far from clear that public funding of wrongful conviction insurance represents a socially optimal use of public funds. Moreover, because damages awards are funded by the taxpayers rather than the wrongdoers, the case for compensation as a form of compensatory justice is equally problematic. As for a regime of fault-based liability, both tort law and constitutional law have long wrestled with the problem of wrongful convictions, and have erected many doctrinal obstacles to a regime of fault-based liability. These doctrinal obstacles reflect considerable skepticism about the wisdom of damages for wrongful convictions — skepticism that is amply warranted. A regime of fault-based liability for wrongful prosecutions and convictions could not be confidently expected to induce police and prosecutors to take all cost-justified precautions to reduce the risk of wrongful prosecution or conviction given that police and prosecutors respond to political and not economic incentives, and the political benefits of aggressive prosecutorial tactics are substantial. If individual public officials were required to pay judgments, in turn, many judgments would go unsatisfied, and the risk of overdetrrence would be great. Ultimately, our current regime of political accountability for wrongful convictions is likely to be about the best than we can expect for identifying and reducing the risk of wrongful prosecutions and convictions.

| Permalink


A regime of strict liability likely would be destructive in a variety of ways. Although compensation should be available for the wrongfully accused in appropriate circumstances, something analogous to a comparative fault approach seems to make sense in this context.

Posted by: Kimberly Diego | Mar 17, 2010 2:20:04 PM

Sir, this is a very good article.

In other words, since police and prosecutors (as a team) enjoy the loop-hole (created by lawyers) allowing them to falsely arrest and wrongfully convict via plea-bargain abuse without being held personally responsibile, no amount of money will stop the circle jerk.

Only a small percentage of the cherry picked group of exonerees have received any compensation.

I personally will never be exonerated or receive any reparations for being falsely arrested and wrongfully convicted. Despite the suspect(s) having black hair & black skin and me having light brown hair and white skin. There are no groups assisting the white 'victims of the system', believe me I've written to everyone since 1998.

Why? The case has absolutely nothing to with DNA, Death-Row and/or being currently in custody with an open case. Since my sqeaking wheels has never been greased and I'm doomed to be ignored forever, I created PROJECT: Not Guilty. My project names the names of the bad cops, the rouge Assistant District Attorneys, and the defense team that works in tandem. It also names the names of the Texas Board of Pardons & Paroles members that vote to ignore the applicants without vetting.

Posted by: The Team | Mar 18, 2010 10:51:05 AM

Post a comment