The Crazy Injustice of Denying Exonerated Prisoners Compensation
February 26, 2016 1:06 AM   Subscribe

 
I absolutely believe exonerated prisoners deserve compensation. I actually believe as a society we need to figure out how to fund prisoner exit in general such that the newly freed can get back on their feet. I mean if they just reoffend immediately because that's the best way to eat we don't end up financially ahead.

I also absolutely believe massive settlements for exonerated prisoners will reliably cause the system to massively suppress exoneration. In other words we can end up actively punishing the innocent because it's way, way cheaper. This is also awful.

I don't know what we do here.
posted by effugas at 1:49 AM on February 26, 2016 [7 favorites]


effugas: In other words we can end up actively punishing the innocent because it's way, way cheaper.

Oh, I wouldn't worry so much about that. We already actively punish the innocent with things like massive procedural hurdles to testing evidence already in police custody. The AEDPA, for one, and hurdle-upon-hurdle erected by state lawmakers running positively scared of even potentially seeming as though they're "soft on crime." The thing that made all of those death penalty exonerations in Dallas and Harris Counties so outstanding wasn't that so many people were found actually innocent of crimes that parked them on death row, it's that any happened at all.

"Well, sorry, seems like you're actually innocent but your old lawyer sucked like the holy trinity of a black hole, Prince's last album, and a Dyson, thus he missed the last filing deadline for your last-and-forever-final appeal, therefore it seems like you'll just have to keep spending your days in prison. Maybe you can write a letter a week to the state legislature and get some books for the library won't that be fun?"
posted by fireoyster at 1:55 AM on February 26, 2016


To be completely forward about this, do we expect it to be any different? The American justice system has never purported to be anything other than putative and dehumanising. The system itself is designed to punish offenders, and its staff are incentivised to do the same. Police and prosecutors are incentivised on the basis of successful convictions, and the prison industry is convoluted with interests ranging from politicians to multinational businesses.

There are two factors that operate for the wrongfully convicted. The first is that wrongful imprisonment goes against core American values like "innocent proven guilty" and "better to let a hundred guilt men go free...". The second is that there's a catch-22 on the incentives of the people involved. No police officer wants to be seen as arresting an innocent man. No prosecutor wants the legacy of getting it wrong in the courtroom. No judge wants to be the person who sentenced an innocent man. All the way down the chain.

In a way, these wrongful convictions are an inconvenient truth for an industry of people upholding a sacred duty to the people. Not only is it embarrassing, but it also conflicts with the very values and ideologies that many Americans hold most dear. For this is nothing less than the stripping back of freedom itself. Nobody wants to be involved in that.

In an alternate world, we could celebrate those exonerations and use them to humanise and correct the system. In the early days of the technology industry, IBM would take back broken parts of mainframes, study them, and learn from them – to correct the failure and ensure greater reliability in future parts. Yet, that's not what we see here. What we see here is the turning of a blind eye – to a truth so painful because it forces us to take a hard look at our justice system and admit not only is it dehumanising, but it also gets it wrong.

That's a tricky proposition, because given the size of the US prison population, perhaps we as a society don't want to think about how many errors have been made. How many people have had their lives destroyed. How many families ripped apart by the function of a machine that forms one of the cornerstones of our democracy?

Further, the solution is not a simple one, for as anyone who knows individuals involved in the justice system, will know its generally poorly funded and the people are overworked. There was a story about public defenders in New Orleans refusing new cases and risking contempt... because they were already working 2x over the number of recommended hours. Cases that required 48 hours of pre-trail preparation were receiving <17 hours. Police departments continue to cut patrol and training budgets and invest in military-style equipment, special forces, and technology like drones. The front-line of the system – the command part that encompasses lawmakers and law enforcement continue to get stronger, while the back office control part falls into the paradox of rising workload and falling budgets.

If the state of prison's in the United States is a measure of "successes", then exonerations are a measure of "failures". Simply looking at the state of the industry's "success", is it any surprise that the "failures" are treated so poorly?

There are two solutions that I see here, and both will unpalatable to the American people. The first is that the justice system needs more money, which means higher taxes. When I see rants about people for the 'corporate-prison complex' or whatever it's called, I cringe, because the reality is that the prisons turn to corporate money to make up for tax shortfalls. Yes, prisons in California are one of the largest budget items, but that doesn't mean that's nearly enough money to keep the system functioning. If we're going to be hellbent on incarcerating people as a viable option to maintain social order (which itself is not ideal), how can we be surprised when the costs of the same explode with the prison population?

So the first solution is that the justice system needs to be better-funded, which means higher taxes. The solution to the exoneration problem then comes in the form of taxation – and how many people are ready to pay higher taxes to make the justice system more comfortable for those rightly or wrongly caught up in it?

Personally, I believe that if taxes reflected the true cost of the system, we wouldn't necessarily see higher taxes, but lower rates of incarceration. Because if the average American taxpayer saw their money being used to house an exploding population of criminals, they may push back on the reasons that population is exploding in the first place.

The second solution is to change the incentive structure to not only maximising conviction rate, but also include minimising wrongful convictions. Currently, as far as I know (and I don't know much), most of the system is predicated on maximising convictions. Especially given the overburdened nature of the system.

The simple solution would be to also measure exonerations and attach that with equal (or greater) rates to the records of those involved:

Score:
(Convictions: +1 points x N) + (Exonerations: -100 points x N) = Effectiveness

Use that system for promotions, salary, bonuses, etc.

That way, you'll primarily promote people who not only are effective prosecutors, but also take the potential impact of wrongful incarceration into account.

Overall, I don't see this as a downstream problem of why didn't the man at the top of the article get paid, but why was he there in the first place? We can focus on making payments to the wrongfully imprisoned more efficient – but he says himself no amount of money is going to make up for the lost time.

Which gets back to the more fundamental issue of how he ended up there in the first place. It's with no small degree of irony that this article is in an online magazine called "modernluxury.com" and focuses on "how does this poor man get his money" rather than "we need higher taxes to fix a broken system".
posted by nickrussell at 1:56 AM on February 26, 2016 [9 favorites]


I think weary cynicism is the enemy here, stealing our indignation and leading us towards fatalism and even complicity.

It's the same enemy that causes people to think that those who have been exonerated were probably guilty in reality and deserve to go on being treated like criminals. We should try to be clear that, like those who have not been convicted, the exonerated are innocent.
posted by Segundus at 2:28 AM on February 26, 2016 [1 favorite]


The universe allowed us to punish them, therefore they are guilty.
posted by pfh at 2:29 AM on February 26, 2016 [3 favorites]


One huge step they should take for all prisoners, guilty or not, would be to make prisons safer and to focus on rehabilitation, education, and self-fulfillment. Prepare prisoners to succeed socially and financially in the outside world even if they have little realistic hope of ever living there again. No one should spend 10 years in prison without receiving a formal education, job experience, and any needed therapy.
posted by pracowity at 3:10 AM on February 26, 2016 [5 favorites]


One huge step they should take for all prisoners, guilty or not, would be to make prisons safer and to focus on rehabilitation, education, and self-fulfillment. Prepare prisoners to succeed socially and financially in the outside world even if they have little realistic hope of ever living there again. No one should spend 10 years in prison without receiving a formal education, job experience, and any needed therapy.

The problem with this would be that society would then be treating convicts with more respect than it treats ordinary citizens. Until there is a more just society it is horrendously difficult to make the case for a just penal system.
posted by srboisvert at 4:32 AM on February 26, 2016 [6 favorites]


hurdle-upon-hurdle erected by state lawmakers running positively scared of even potentially seeming as though they're "soft on crime."

Which is especially fascinating because literally every action taken in pursuit of punishing an innocent person is objectively an action taken in aid to the actual perpetrator. But then, "soft on crime" never had anything to do with criminality...
posted by Pope Guilty at 5:15 AM on February 26, 2016 [3 favorites]


The simple solution would be to also measure exonerations and attach that with equal (or greater) rates to the records of those involved:

You would have prosecutors fight tooth and nail and use any number of barely legal dirty tricks to keep innocent people in jail.
posted by Talez at 5:26 AM on February 26, 2016 [1 favorite]


You would have prosecutors fight tooth and nail and use any number of barely legal dirty tricks to keep innocent people in jail.

Ted Cruz, for example.
posted by Pope Guilty at 5:28 AM on February 26, 2016 [1 favorite]


It seems that this would certainly derail some efforts to free unjustly accused people, as Talez posits. I'm not sure also about how this might extend to liability for juries and prosecutors. These are areas in which I have little expertise. Yet...

Possibly a bit off-topic, but related to prisons in general.

I've thought recently about the idea of turning prisons into universities. Degree earned = reduced incarceration time. I see several problems addressed here. Ignorance and reduced life opportunities would seem to correlate with recidivism, too few job opportunities for advanced humanities degrees, more productive use of time inside versus just sitting around making shivs. I'd like to understand new viewpoints around why this would be a bad idea. I've come up with arguments around 'well that would just mean the poors would commit crimes to get educated,' and 'we'd just have smarter criminals,' and 'its supposed to be punishment!'

I'd be interested in thoughtful comments about the feasibility of such an idea.
posted by sfts2 at 5:51 AM on February 26, 2016


Degree earned = reduced incarceration time.

All else being equal, you'd be punishing dumb people just for being dumb. Two guys with the same record commit the same crime, even have the same high school grades and so on to begin with, but one guy can pass freshman composition at Screw U. and the other guy can't, so the guy who can write an essay on what he would do over summer vacation gets out early while the other guy sits in prison.
posted by pracowity at 6:45 AM on February 26, 2016 [4 favorites]


"The American justice system..."
No. Just no.

America has never, for even so much as a single microsecond, had a Justice system; we have a Legal system, and the distinction between those two tells you much about the nature of the justice and incarceration problems we have as a nation.

Think about the abhorrent qualities of Scalia's jurisprudence, such as his not giving a damn about actual innocence as long as technical procedures were properly followed (and not even always then, as he didn't really seem to care about rampant prosecutorial misconduct either). This is exactly the expected product of a legal construct where justice is not only merely an occasional afterthought, but is actively derided as a 'hippie leftist' mentality.
posted by mystyk at 6:46 AM on February 26, 2016 [6 favorites]


sfts2, are you proposing free college education to criminals when our children have to go into extreme debt in order to obtain a chance in life? Do you want to make it so that the best way for someone to get a college education is to kill someone? Won't you think of the children?

Ahem. I want to say this started in the 80s, but I could be wrong, but I know that they have been steadily stripping many of the things that make prison rehabilitative instead of simply punitive for many years. Offering education to prisoners would be great, but then people would want to know why they can't obtain an education for free as well. And that road leads to questioning the current set up of the US, which leads to statues of Mao in Times Square.
posted by Hactar at 7:15 AM on February 26, 2016


The problem with this would be that society would then be treating convicts with more respect than it treats ordinary citizens.


If ordinary citizens were treated with more respect (by politicians) there would likely be considerably fewer convicts.
posted by notreally at 7:20 AM on February 26, 2016


Hactar, Yes that is what I am 'proposing,' although I stated pretty specifically what stage this thought process was in. Thats what I meant by 'well that would just mean the poors would commit crimes to get educated'

pracowity, I guess I just don't believe that there really are 'dumb' people, just un(der)educated ones. Some people may have to work harder than others to do the work...but no one should confuse life with being 'fair' I usually just think in terms of solving multi-dimensional problems practically.
posted by sfts2 at 7:44 AM on February 26, 2016


"I'd like to understand new viewpoints around why this would be a bad idea."

For one, I think you might be vastly overestimating the extent to which educational credentials will cancel out a criminal background and result in improved life opportunities. Education for its own sake is a positive, but there may be a problem with quantifiable results when it comes to recidivism once prisoners are released and a justification of the cost for people who want to see that.
posted by Selena777 at 7:57 AM on February 26, 2016 [1 favorite]


...there may be a problem with quantifiable results when it comes to recidivism once prisoners are released and a justification of the cost for people who want to see that.

Education and Vocational Training in Prisons Reduces Recidivism, Improves Job Outlook

From that link:
“As corrections officials struggle to cope during a period of constrained government spending, prison education is an approach that may help save money in even the short term,” Davis said.
posted by generalist at 9:56 AM on February 26, 2016


One slightly reassuring thing to me, is that during my 4 years doing antiviolence training in prisons (a few hundred people at this point), only one of them has claimed innocence (FWIW, I believed him). So, at least in the self-selected group of generally long-term inmates and lifers I work with, false conviction is probably no higher than 1%.

Of course, that guy had been in prison for 20-some years of a life sentence and was caught in a horrible catch-22 because he maintained he was innocent, so they refused to let him out of prison. So he decided to try apologizing to the victim's family for the horror they'd endured (while not admitting he'd done it), and the parole board questioned why he'd ever apologize if they said he was innocent. So no matter what he did, the parole board was going to say it was a reason to never let him out. He says he's innocent, he's lying. He shows compassion toward a family that lost their son, well he must be guilty too. I'm sure had he relented and said he was guilty, that would have been reason too.
posted by zug at 11:00 AM on February 26, 2016


What a weird and awful system. Why the fuck is the exoneree's "actual" innocence brought into it at all? Frankly, if the exoneree actually did it, but left no evidence and was convicted through a total travesty of justice, I'd say he deserves compensation anyway. Two wrongs don't make a right here.

Do any of these systems distinguish at all between people exonerated because of an unfairly reached conviction (no doubt the majority) and people exonerated because of a conviction that was inaccurate but could justifiably have been thought "beyond a reasonable doubt" at the time? (And then something happens to change the facts available to the legal system -- a crucial body part finally washes up on a beach, for example.) It seems like this ought to be based on a judgment of the legal system, not of the exoneree.
posted by ostro at 11:19 AM on February 26, 2016


Thanks for this. I had no idea.
posted by Lyme Drop at 12:07 PM on February 26, 2016


I like how threads like this have a certain percentage of hard-bitten criminal justice types saying, "yeah, well, that's the way it's always been" and others outside the system completely who say "gosh, who knew?".
posted by telstar at 12:31 PM on February 26, 2016


The study you linked includes vocational programs, generalist, while stfs2 suggested a university environment. The trades are more forgiving, but even people who were degreed and employed in white collar professions before regularly find themselves blacklisted from the types of jobs that require degrees after a stint in prison.
posted by Selena777 at 2:03 PM on February 26, 2016


What, you mean the plot of Life wasn't real?!?! Darn it!

Yeah, I strongly suspect a college degree isn't going to overrule the box where they have to indicate that they went to jail, especially when there are 250+ candidates up for the job that also have college degrees and didn't go to prison.
posted by jenfullmoon at 6:12 PM on February 26, 2016 [2 favorites]


Really, they need to compensate the exonerated because they still aren't going to be able to get real jobs and support themselves and will need that money to live on.
posted by jenfullmoon at 6:12 PM on February 26, 2016 [1 favorite]


I think if guys went inside for 25 years, got a post-doc in physics, and get out in say 15 years...could find a job...maybe pie-in-sky I guess but I wasn't really thinking so much for 'jobs' as self-respect, respect of others, and honestly, if a guy is inside for 25 years doing laundry, well, you can't really say he's strongly employable and blame companies for not hiring them...maybe for menial labor but those jobs going away and being taken by Republicans anyways...
posted by sfts2 at 8:58 PM on February 26, 2016


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