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"Losing my faith in humanity ... one neocon at a time."

Wednesday, October 27, 2004

Carnival of Solutions: Wrongful Conviction

posted by Jazz at 10/27/2004 06:10:00 PM

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The following entry is in response to a challenge posed by Pennywit. The assignment is to consider a problem facing our society, and to deliver a solution to said problem. With luck, the Carnival of Solutions will become a running event by Pennywit. Hat tip to Dean's World for pointing me to this. This week's problem:

Compensation of those wrongfully imprisoned

Given: A person who has been convicted of a crime and imprisoned for a period of several years has been set back significantly, both in terms of lost wages and in terms of lost years.

The Problem:How should such individuals be compensated for their wrongful imprisonment? What factors should be taken into account in setting such damages? What venues and procedures are appropriate for handling these claims?

My Answer: Oh, dear. I certainly hope I have one. Tough question.

There are several elements to consider regarding remuneration for the wrongly convicted. There is first, on the most unemotional level, the issue of compensation for lost wages. The second is the favorite of trial lawyers across the land - "pain and suffering", or the compensation for non-monetary damages. The third issue, and perhaps the most politically risky, are the social considerations. Never being one to shy away from tough questions, that's the one I'll tackle first.

Any such compensation given to a wrongfully convicted person is not going to be paid for by the accuser. It shall be paid for out of taxpayer money by the people. And "The People" have a history of wanting to know that their money is being well spent to good purpose, and that they are getting something of value in return.

Not every person who is wrongfully convicted is a clone of Tim Robbins in The Shawshank Redemption. Very often, the incorrectly accused are brought up as suspects because they are persons who have already led a life of crime, been convicted of previous offenses, and are not viewed by more law abiding citizens as particularly worthy of sympathy. This does not in any way excuse the fact that they were incarcerated for a crime they did not commit, but it complicates the political reality of rewarding them. It's a factor we have to take into consideration when deciding on the best way to compensate such victims. No solution is likely to be accepted if it is applied flatly across the board to each convict. At the very least, any consideration of "pain and suffering" damages, which are more tenuous in nature and definition, will have to be tempered by the character of the person to whom they are being awarded. So with that in mind, fixed monetary sums don't work and a judge and/or jury has to be allowed some latitude in determining damages.

The base compensation is probably easier than you might imagine, though I'm sure some will call my solution unfair. Everyone carries a record of their earnings through their life. It's in your tax records and social security account. It's not difficult to examine any person's past earnings record and then extrapolate out how much they might have earned over the period of their incarceration, taking into account raises they might have received via merit or job changes. Cost of living can also be taken into account. Using those figures, it's not difficult to come to a figure that would reflect what the person might have earned while they were in prison and award them lost wages compensation based on that - possibly with a "fudge factor" thrown in on the positive side just to be safe.

The last issue is the hardest. I am not a fan of huge settlements in court to people who don't have, in my eyes, a legitimate grievance. (Insert your own "old lady spilling McDonald's coffee in her lap" joke here.) However, people wrongly sent to a correctional facility clearly have a legitimate beef with the system. Horrible things can result from such an error. Prison rape is rampant, the psychological effects of incarceration are potentially devastating, and the stigma on post prison life of having been a "con" can ruin you. Surely some compensation is in order.

Unfortunately, since that compensation comes from the pockets of the mass of taxpayers, it can not be an immediate windfall such as winning the lottery. I believe that a fair baseline for any person in such circumstances needs to be established which can be modified by the judge and jury based on circumstances. While no amount of money could ever fully counter the effects of being wrongly jailed, a base amount of "pain and suffering" should be established. Something in the range of 50,000 dollars per year of incarceration seems valid, and would add up quickly. For cases of truly law abiding persons, with no previous record and a good reputation in their community, it could be increased, at the discretion of the court to as much as 150,000 dollars per year.

Having thought my way through this, I'll admit that my answer might seem cold and inhuman. However, I also think it addresses the realities of the world and goes some distance towards being fair to all parties.