The question in the title of this post is the subheadline of this new lengthy New Yorker article about the aftermath of wrongful convictions. Here is an excerpt:
One of the earliest arguments for financial compensation for the wrongly incarcerated came in 1932, from the Yale law professor Edwin Borchard. In an influential book called “Convicting the Innocent: Sixty-five Actual Errors of Criminal Justice,” Borchard wrote, “When it is discovered after conviction that the wrong man was condemned, the least the State can do to right this essentially irreparable injury is to reimburse the innocent victim, by an appropriate indemnity for the loss and damage suffered.” He noted, “European countries have long recognized that such indemnity is a public obligation.” But it would be many years before the United States began puzzling through what constituted an “appropriate indemnity.” It wasn’t until the first DNA exoneration, in 1989, that most states began to seriously consider compensation.
There is still no consensus about the value of lost time. Missouri gives exonerees fifty dollars a day for time served, California twice that much. Massachusetts caps total compensation at half a million dollars. In Maine, the limit is three hundred thousand; in Florida, it’s two million. The variation is largely arbitrary. “If there’s a logic to it, I haven’t seen it,” Robert J. Norris, a researcher at SUNY Albany who has studied compensation statutes, told me. In Wisconsin, no matter how long an exoneree has served, the state will pay no more than twenty-five thousand dollars — the same figure that its legislators established in 1979. “They just never changed it,” Norris said. “They even amended their statute in 1987, but they didn’t change the amount.” Most states levy taxes on payment. Twenty states have no compensation statutes at all.
Fifteen hundred and seventy-five people have been exonerated in the U.S. The best off are those whom Brandon Garrett, a professor at the University of Virginia School of Law who has written extensively on post-conviction litigation, describes as “the ones that win the tort lottery.” These are exonerees who seek compensation through the courts, arguing that their fundamental civil rights were violated by the police or by prosecutors. (The same legal principle is at issue in federal suits brought by people who have been shot by the police.) In such cases, the potential damages are unlimited. But the standard of proof is high. “Police officers have qualified immunity,” Garrett told me. “They can violate your constitutional rights — reasonably but not egregiously.”