Monday May 7, 2007

Carl Hiaasen has a column about Alan Crotzer, who spent 8 years in prison after being wrongly convicted of rape. He reprehends the Florida state legislature for not compensating him with money ($50,000 per year). My problem Hiaasen with this is that he never generalizes the argument — if he’s going to write about compensation for wrongful conviction, why not argue it should be automatically awarded to everyone?

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  1. Jonathan    Tue May 8, 06:02 PM #  

    Good idea.

  2. alesh    Tue May 8, 07:26 PM #  

    Hi Jonathan! Are you being serious or sarcastic?

    Did you watch the Copenhagen Consensus video from Saturday? He makes some interesting points about global warming.

  3. kingofrance    Wed May 9, 12:24 AM #  

    I think the deal with the claims act is that the legislature has to approve the award if it’s over 200k. It’s not a matter of the legislature coming up with an amount, that’s done by the lawyers. The amount of damages isn’t decided by Tallahassee. The legislature only approves, or in this case, doesn’t approve of the award. This is not anything they don’t do every year. So then it goes back to Hiaasen’s initial question, why didn’t they?

  4. alesh    Wed May 9, 06:55 AM #  

    KoF, I think it pretty clearly points to a different initial question: WHY should the legislature approve these on a case-by-case basis?

    Let me put it another way: under what situation should someone definitively exonerated after serving time in prison not be entitled to compensation? (Hint: the situation should be something that couldn’t be codified in law.)


  5. kingofrance    Wed May 9, 10:12 AM #  

    question 1: Because they are responsible for how much money the state spends and want to know where the money is going.

    question 2: none (again, it’s not the situation that is codified, it’s the amount). Should there be an exclusion in the Claims Act for those who have been wrongfully incarcerated and have been awarded more than 200k? I certainly think so.

  6. Jonathan    Wed May 9, 11:42 AM #  

    Serious. How compensation levels are to be determined is a separate issue, but in principle I think automatic compensation is a good idea, both as a matter of justice and as a small disincentive to sloppy or malicious prosecutions.

    BTW, doesn’t $50k/year seem awfully light? Think about how much you would have to pay someone, even someone whose income-earning potential is low, to spend 20+ years in jail. I think it would be a lot more than $50k/year for most people.

    Didn’t watch the GW video.

  7. alesh    Wed May 9, 11:48 AM #  


    Hiaasen’s math is screwy, too. He says “$1.25 million, or about $50,000 for every year that he was wrongfully incarcerated.” Assuming the 1.25 mill is correct, that’s more like $150,000 per year. I guess that sounds more reasonable. But if you’re after a figure that’d make most people think it was “worth it,” I don’t think it could or should work that way.


    Yeah, they’re responsible all right. But knowing where the money is going and “micromanaging” every disbursement are two different things, no?

    Sorry, I’m not following what you said under “question 2.”

  8. Guv    Wed May 9, 03:06 PM #  

    1,250,000 divided by 50,000 = 25.

    The gentleman served 24 years of the 130 year sentence.


  9. Guv    Wed May 9, 03:14 PM #  

    From article (assuming Hiaasen got the 24-years right):

    “Exonerated by DNA evidence and eyewitness accounts, he was freed in January 2006 after 24 years — more than half his life — behind bars.”

    So, $150,000 × 24 would be $3.6 mil, and yeah, that sounds a little better. Assuming that’s after taxes, not before.

  10. alesh    Wed May 9, 03:17 PM #  

    Yep — that’s the real math, my bad. How much a year of wrongful incarceration is wrong remains an open question.

  11. Jonathan    Wed May 9, 03:42 PM #  

    But if you’re after a figure that’d make most people think it was “worth it,” I don’t think it could or should work that way.

    Why not? Isn’t that the point of compensation? My thought is that in such a situation it’s reasonable to make the victim whole, at least.

    It’s like taking private property for public use. The taking might be justified by the benefit it brings to the community, just as the occasional unintentional wrongful conviction might be justifiable in a criminal-justice system that is generally beneficial to the community. But then shouldn’t the cost of each property taking or wrongful conviction also be borne by the community as a whole, rather than disproportionately by one individual who happened to be in the wrong place at the wrong time?

    The value of time spent in jail, like the value of a job, is the amount of money you have to pay to get someone to do it voluntarily. If you agree on making victims whole, then that is the amount of money to start your calculation at. If you don’t agree that the victim should be made whole, then how should compensation be calculated, and why should he be made to pay disproportionately for the system’s mistake?

  12. kingofrance    Wed May 9, 03:47 PM #

  13. alesh    Wed May 9, 04:56 PM #  


    How much would you need to spend 24 years in prison?

    I simply meant to say that I don’t think such a figure reasonably exists. The other consequence of your reasoning is that it would lead to rich people being compensated more then the poor. Would that be acceptable to you?

    KoF~ Good link.

  14. Jonathan    Thu May 10, 12:08 PM #  

    I would not be willing to spend that much time in prison for any amount of money. I might do it, however, to save the life or prevent the imprisonment of a loved one.

    I agree that my reasoning implies higher compensation for rich people. I don’t see a problem with that. Those who lose more should be compensated more. A poor person loses mainly freedom, a rich person loses freedom and wealth, so a rich person loses more. As a practical matter, few wrongly-convicted people are rich, so this seems like a minor consideration.

    It may be that the amount of compensation, either as a rule or in individual cases, is difficult to determine, but I don’t think that means that it’s not worth making an effort to compensate wronged people fairly. At the least, it seems to me that few people, even poor people, would be willing to be imprisoned for $50k/year for even a few years, much less for 24 years. So the compensation in the case we discussed, while much better than nothing, still seems low.

  15. Guv    Thu May 10, 01:50 PM #  

    The problem is that nobody ASKED this guy whether he wanted to trade 24 years of his life for $50K a year. That’s just what he GOT.

    Even if any of us did freely enter into some sort of deal (and name ANY amount of $ per year you want), I bet it would get old quickly. Most of us wouldn’t (willingly) last 24 years.

  16. Biscayne Bystander    Sun May 13, 01:53 AM #  

    The price for a man wrongfully losing his freedom is $5.92 per hour?? Are you kidding me? I’ve seen OZ. That shit is no joke.

  17. alesh    Mon May 14, 05:55 PM #  

    So what’s the fair price, giving that you want to try to be as fair as possible without breaking the state?

  18. Jonathan    Mon May 14, 06:35 PM #  

    The State can keep the cost down by being more careful with prosecutions. Which is the idea (or one of them — the other is compensating people who were wronged).

    Defendants with money can buy insurance against prosecutorial error and abuse by hiring good lawyers. Poor defendants are sometimes well defended and sometimes poorly defended. Setting compensation levels high, and perhaps also docking prosecutors’ budgets or otherwise making them accountable for mistaken convictions, might provide additional protection for poor defendants by making prosecutors more careful.

    I don’t know what a fair level for compensation would be in each case, and I don’t know what the best way to protect innocent defendants would be, but I think the current system could be improved. What do you think?

  19. alesh    Mon May 14, 09:03 PM #  


    At its root, this issue brings out the pessimist in me: I’m not at all sure that “making prosecutors more careful” is a good outcome. We have an adversarial system going on here, which means that the judge/jury is supposed to be making the decisions. Would you favor new measures designed to prevent defendants from stepping over some line? (You might — please let’s leave that out of this conversation.)

    There’s no doubt that there are situations where reasonable prosecutors would drop cases, and where those cases go on because the prosecutors on the cases are assholes.

    But I think the bigger issue here is one that gets right down to the core problem of trying to have a human society — it’s just way too easy to commit a near “perfect crime;” one which is almost impossible to prove. Are we willing to accept a certain amount of give in the system — a certain percentage of unsolved crimes — in exchange for our civil liberties?

  20. Jonathan    Mon May 14, 10:17 PM #  

    I think there will always be both false negatives (criminals who get away with their crimes) and false positives (innocent people who get punished). However, my hunch is that the system can be improved so that there are fewer false convictions, without any corresponding increase in false acquittals or dropped cases. One way to do this might be to increase the cost to prosecutors of false convictions that are obtained via prosecutorial incompetence or corruption. (The point about increasing compensation for wrongly-convicted people is, I think, also valid as a simple matter of fairness for people who are wronged.)

    Is this doable? I don’t know. There are good reasons for prosecutors to be unaccountable. The problem is that an incompetent or corrupt prosecutor can destroy people more easily than can almost anyone else in our society. The trick is to find ways to make prosecutors more accountable for inappropriate behavior, without also making them less independent when they are doing their jobs properly. This is a very difficult problem to solve. But it’s clear to me, both from the number of rape and murder cases that are being overturned based on DNA analysis, and from the number of high-profile cases that are obviously politically motivated (the Duke rape case, overzealous prosecutions of traders and day-care operators in the 1980s, etc.), that prosecutorial abuse and incompetence are serious problems. I don’t think our justice system functions as well as it could.

  21. MiamianLawStudent    Mon May 14, 10:51 PM #  


    Guv & Biscayne Bystander,
    Great points.


    I simply meant to say that I don’t think such a figure reasonably exists. The other consequence of your reasoning is that it would lead to rich people being compensated more then the poor.

    The law often calculates figures that seem impossible to estimate. Wrongful Death statutes, for example, allow the calculation of an individual life’s worth. The 9/11 Victims Compensation Fund did the same. Worker’s Compensation Funds do too. All three of examples result in higher compensation for higher income earners.

    I’m not necessarily saying that this is a good thing. Only that legislatures and courts are less worried about making people “completely” whole or providing accurate compensation than they are providing some kind of compensation even if it is a token amount or a windfall.

    I’m not at all sure that “making prosecutors more careful” is a good outcome.

    I’m not sure it’s a good outcome either but the reality of criminal procedure is that it’s entirely designed to make protect the defendant by forcing prosecutors to be more and more careful. The mantra of our criminal justice system is “innocent until proven guilty beyond a reasonable doubt.” That’s a high, pro-defendant standard that is unparalled in most other areas of American law and most foreign criminal justice systems.

    it’s just way too easy to commit a near “perfect crime;” one which is almost impossible to prove.

    Um…how do you figure?

  22. Biscayne Bystander    Tue May 15, 11:59 PM #  

    I finally took the time to read the link to the Hiaasen article and I have to say, I think it was a great piece. I can’t believe that this process of restitution is so grueling to the point of being “humiliating”.

    We should already have a benchmark for the MINIMAL amount paid. The average daily cost per inmate in Florida is $49.61 – court fees withstanding. If the state could spend that amount to keep him locked up, why not pay the same amount to right wrong? I believe the LEAST this man is owed $419,105.28 and yes, completely tax free.

    Carl is right to say that “It’s crazy to let politicians decide the monetary worth of years stolen from a person’s life, but there is currently no other legal avenue”. However, I want to know why is this their only avenue? Why can’t they take the state to civil court and sue for its infrigment on their rights?

    There was a great line in a recent episode of Boston Legal: “They say when people get scared the first thing they will give up is their civil liberties. That’s why after 9/11 we were only too happy to get frisked at the airport.” I think that statement relates to this topic. 9/11 made us soo hypersensetive many have also adopted a policy of “assumed guilty until proven innocent”.

    Here are some great arguments made by Alan Shore, as to why allowing the erosion of our civil liberties.

  23. alesh    Wed May 16, 07:47 AM #  


    I agree with almost everything you’re saying. I think you’re ignoring my previous point, though: prosecutors are not responsible for convictions. They’re responsible for presenting the case for guilt, and the system is responsible for convictions. Prosecutorial corruption should of course be harshly punished.


    If someone is dead, you’re really compensating their family, and part of that really is restoring what that person would have earned for them. FWIW, I have a gut feeling that compensating “higher income earners” more for time in prison is wrong when it’s not necessarily wrong in those other cases. I mean, is “lost wages” really the issue?

    Um…how do you figure?

    Just look at the case Hiaasen was discussing, and scores like it — there is enough evidence to convict someone, and it turns out to be WRONG. Look at all the unsolved cases in police files. I’m thinking of murder, theft, etc — these are crimes in which, unless the person is caught in the act, or unless some specific “clue” happens to lead back to the criminal, are unsolvable. It’s all a little depressing.


    Fine, but I believe you've missed my point.

  24. MiamianLawStudent    Wed May 16, 01:01 PM #  


    Re: High-income earners

    Lost wages is not THE issue but its one of many. Why not handle that one even if the others, like wrongful deprivation of liberty is intangible?

    Re: Wrongful Death

    You’re right that the money ultimately goes to the family.*** However, I mentioned the statutes only as an example of courts and legislatures’ willingness to calculate the impossible. They’d often prefer to compensate things like lost life, lost liberty, or lost earning potential than not compensate them.

    Re: “How do you figure”

    While every wrongful conviction represents an egregious injustice, they thankfully remain a small portion of all convictions. It’s a big leap to go from “there are wrongful convictions” to “it’s easy to commit the perfect crime.”

    ***Interestingly enough, the law is clear that compensation goes to the dead person and not the family or the person brining the wrongful death suit on the decedent’s behalf. The plaintiff and the decedent’s family receive only what’s left to them by will or inheretence. But, yeah, for all practical purposes you’re right—the compensation’s for the enjoyment of the decedent’s inheritors not the decedent.

  25. alesh    Thu May 17, 08:04 AM #  

    No no, I was citing wrongful convictions as one example. I think the amount of cases that goes unsolved is a better example, but I can’t seem to find any statistics online!

    Does anyone have information on the numbers of unsolved crimes?

  26. Jonathan    Mon May 21, 11:04 AM #  

    I think you’re ignoring my previous point, though: prosecutors are not responsible for convictions. They’re responsible for presenting the case for guilt, and the system is responsible for convictions. Prosecutorial corruption should of course be harshly punished.

    What is the best way to improve the system? I’m open to other ideas than reforming how prosecutors operate. However, since prosecutors’ decisions have enormous leverage, I think they should probably be a focus of reform.

    BTW, have you seen this Slate article ?