Indiana Law Review Wrongfully Incarcerated, Randomly Compensated—How to Fund Wrongful-Conviction Compensation Statutes Deborah Mostaghel* Introduction It is sadly true that there are people in this country who are sentenced to prison, and even death, for crimes they did not commit. Some have been exonerated and released, largely as the result of innocence projects that have helped prisoners assemble DNA evidence that shows they were not the perpetrators.' Some have been exonerated years after they died in prison. Many others are no doubt never exonerated.^ For a wrongfully convicted person, exoneration is the end of one road but only the beginning of another. Unbelievably, exonerees starting out on the road back to society fmd that they get little to no help from the justice system. Offenders on parole and convicts who complete their sentences may receive more services than released persons who committed no crime at all.^ This Article is based on the premise that states must pay compensation to innocent persons who have suffered wrongful imprisonment. The Article explains why exoneration is not enough. It then discusses theoreticaljustifications that support the payment ofcompensation and refutes objections to making such payments. Finally, it lays out concrete ways in which states may budget for wrongful-conviction compensation statutes. Although monetary compensation can hardly make up for years of wrongful imprisonment, providing compensation is the least a state can do after an * Associate Professor and Director ofLegal Writing and Research, Golden Gate University School of Law. J.D., 1988, University of Utah College of Law. 1. For example, Gary Dotson's 1979 conviction for rape was vacated and the charges dismissed on August 14, 1989. Samuel R. Gross et al.. Exonerations in the United States 1989 Through 2003, 95 J. Crm. L. & CRIMINOLOGY 523, 523 (2005). This was the "first exoneration by DNA evidence ... [to take] place in the United States." Lauren C. Boucher, Comment, Advancing the Argument in Favor of State Compensation for the Erroneously Convicted and Wrongfully Incarcerated, 56 Cath. U. L. Rev. 1 069, 1 069 (2007). One hundred ninety-eight post- conviction exonerations based on DNA evidence occurred between 1989 and 2007. Abigail Penzell, Apology in the Context of Wrongful Conviction: Why the System Should Say It 's Sorry, 9 Cardozo J. Conflict Resol. 145, 145 (2007) (citing About Us: Mission Statement, The InnocenceProject, http://www.innocenceproject.org/about/Mission-Statement.php (last visited Feb. 12,2011)). 2. Unknown numbers of prisoners whose innocence was never established have died in prison. Looking at exonerations beginning in 1989, "[i]n four cases, states posthumously acknowledged the innocence of defendants who had already died in prison: Frank Lee Smith, exonerated in Florida in 2000; Louis Greco and Henry Tameleo, exonerated in Massachusetts in 2002; and John Jeffers, exonerated in Indiana in 2002." Gross et al., supra note 1, at 524. 3. Heather Weigand, Rebuilding a Life: The Wrongfully Convicted and Exonerated, 18 B.U. Pub. Int. L.J. 427, 429 (2009). 504 INDIANA LAW REVIEW [Vol. 44:503 innocent person is exonerated. Part I of this Article explains wrongful conviction terminology. Part II explains how the very same reasons that make it easy for innocent people to be convicted also make it difficult for them to be exonerated. Part III explains why governments must compensate the wrongfully incarcerated when they win their freedom. It discusses the reasons for and against government compensation, rejecting the argument that imprisoning and even executing innocent persons is a harsh but necessary cost of doing business. Part IV deals with the hard question of how to pay for wrongful-conviction compensation statutes. To ensure that wrongfully imprisoned persons actually obtain compensation, the Article makes concrete suggestions for funding compensation statutes. Wrongfully convicted persons who win their freedom deserve compensation statutes, and states can afford them. I. Terminology Innocent people convicted and sentenced to prison are described as the "wrongly convicted,'"^ the "wrongfully convicted,"^ the "erroneously convicted,"^ the "unjustly convicted,"^ and the "unjustly imprisoned,"^ among other terms.^ The prison sentence is also variably described as "wrongful imprisonment,"^^ "wrongful conviction," ^^ or "unjust conviction."^^ I make the stylistic choice of 4. Alberto B. Lopez, $10 and a Denim Jacket? A Model Statute for Compensating the Wrongly Convicted, 36 Ga. L. Rev. 665 (2002). 5 . John H. Blume, The Dilemma ofthe Criminal Defendant with a Prior Record—Lessons from the Wrongfully Convicted, 5 J. EMPIRICAL LEGAL STUD. 477 (2008); Shawn Armbrust, Note, When Money Isn 't Enough: The Casefor Holistic Compensation ofthe Wrongfully Convicted, 4 1 Am. Crim. L. Rev. 157 (2004). 6. Boucher, supra note 1; Christine L. Zaremski, Comment, The Compensation of Erroneously Convicted Individuals in Pennsylvania, 43 DUQ. L. REV. 429 (2005). 7. Adele Bemhard, Justice Still Fails: A Review of Recent Efforts to Compensate Individuals Who Have Been Unjustly Convicted and Later Exonerated, 52 DRAKE L. REV. 703 (2004) [hereinafter Bemhard, Justice Still Fails]; Adele Bemhard, When Justice Fails: Indemnification for Unjust Conviction, 6 U. CHI. L. SCH. ROUNDTABLE 73 (1999) [hereinafter Bemhard, When Justice Fails]; Erin Ann O'Hara, Victims and Prision [sic] Release: A Modest Proposal, 19 FED. Sent'g Rep. 130, 133 (2006) (using the term "innocent convicts"). 8. Shelley Fite, Compensation for the Unjustly Imprisoned: A Model for Reform in Wisconsin, 2005 Wis. L. Rev. 1181. 9. Charles I. Lugosi, Punishing the Factually Innocent: DNA, Habeas Corpus andJustice, 12 Geo. Mason U. C.R. L.J. 233 (2002); Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims ofInnocence, 84 B.U. L. Rev. 125 (2004). 10. Jonathan L. Entin, Being the Government Means (Almost) Never Having to Say You 're Sorry: The Sam Sheppard Case and the Meaning of Wrongful Imprisonment, 38 AKRON L. REV. 139(2005). 11. Penzell, supra note 1; see also Keith A. Findley & Michael S. Scott, The Multiple Dimensions ofTunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 291 ; Brandon L. Garrett, 2011] WRONGFULLY INCARCERATED 505 the Anglo-Saxon "wrong/wrongful/wrongfully" over the Latinate "error/erroneous/erroneously" and the philosophical choice of "wrongful/wrongfully" over "unjust/unjustly." "Wrongfully" describes how the convicting was done, whereas "unjustly" focuses on the result ofthe conviction. The injustice flows from the wrongfulness of the conviction. ^^ Those who win their freedom are commonly called "exonerees." II. Background: Why It Is Easy to Be Convicted and Difficult TO Be Exonerated From mythology to the Bible to Shakespeare to children's tales, popular culture is replete with stories in which no one believes a speaker's claim to be telling the truth. ^"^ Modem American criminal law has its share of such stories. Fifty years ago a murder took place that resulted in one ofthe best known stories: the tale of "The Fugitive." Told and retold on television and in the movies, the story focuses on Sam Sheppard, who was wrongfully accused of murdering his wife, convicted, and imprisoned for twelve years before being found not guilty. ^^ More recent examples include the teens accused of raping the "Central Park Jogger"'^ and members of the Duke University lacrosse team accused of raping Innocence, Harmless Error, and Federal Wrongful Conviction Law, 2005 Wis. L. REV. 35. 12. Bemhard, Justice Still Fails, supra note 7, at 7 1 5; Bemhard, When Justice Fails, supra note 7, at 73. 13. It is noteworthy that commentators do not use the word "mistakenly" to describe the convicting of innocent persons. The unspoken assumption seems to be that a mistake can be innocent, but a decision reached wrongfully is more blameworthy. 14. E.g., Greek mythological figures Laocoon (he warned the Trojans not to accept the Greeks' gift of the Trojan Horse, but no one listened to him) and Cassandra (she could prophesy the fixture, but it was fated that no one believe her); Biblical figure Susanna (the elders who tried to seduce her knew no one would take her word over theirs); Shakespeare's Othello (he refiised to believe that Desdemona was faithfiil to him); the Little Red Hen (she warned the barnyard animals that she would not share her homemade bread if they did not help plant, harvest, and grind the wheat—^they did not; she did not). 1 5 . See Entin, supra note 1 0, at 139-4 1 . Entin begins this article by reviewing a book written by the Sheppard prosecutor about the retrial of the Sheppard case twenty-five years after the original wrongful conviction. In Entin's review, he highlights all the ways that the Sheppard decision was and remains troubling. He uses that starting point as a springboard to discuss new approaches to wrongful imprisonment. 16. A young female jogger was attacked, beaten, assaulted and left for dead in Central Park in April 1989, presumably by a group ofteenage boys "wilding" (participating in a violent spree) in the park. Five teens were convicted ofthe rape and other attacks that occurred in the park that night. In December 2002, as a result ofa confession by the real attacker, the boys' convictions were set aside. Lynnell Hancock, The Press and the Central Park Jogger, COLUM. JOURNALISM REV. 1,1-2, Jan. 1, 2003, \. 181. Seeid.dA.^2>2. 526 INDIANA LAW REVIEW [Vol. 44:503 will be highly sensitive to tort liability"' ^^ because defending against and paying for tort liability takes away resources from other projects. '^^ As a result, elected officials will be "willing to make investments in loss prevention in order to reduce governmental liability costs."'^"^ The stumbling block in the path of Rosenthal's theory could be that governments protect themselves through immunity legislation.'^^ Rosenthal addresses this problem. Analyzing a litany of objections to the theory, he ultimately concludes that the ubiquity of immunity legislation'^^ shows that government officials are very aware of the liability costs of unconstitutional behavior and want to limit those costs. '^^ Thus, he argues, the instrumental justification theory supports tort liability for governments.'^^ Even though the desire to minimize costs is primarily accomplished through immunity statutes, governmental tort liability has an instrumental justification; it creates an incentive on the part of officeholders to allocate resources to loss prevention. There should be a clear political incentive to invest in loss prevention at least when the cost of avoiding an injury is small, the likelihood of injury is great, and the impact on the government's budget is likely to be large. '^^ If there is such an incentive to prevent loss, another question arises: why do states still continue to shield themselves behind immunity laws? Rosenthal's answer to this question is that it is a matter of costs versus benefits. '^'^ The political cost of spending money on loss prevention may be greater than the actual "dollars and cents" cost. Thus, the instrumental theory supports tort liability for governments; it is just not a very efficient means of getting governments to take liability for their torts. Indeed, according to Rosenthal, "Professor Levinson was right to claim that governmental tort liability has no efficiency justification comparable to the role of tort liability in the private sector."'" How does the instrumental theory of tort liability apply to wrongful- conviction compensation statutes? On the one hand, the instrumental theory supports the creation ofcompensation statutes and a concomitant chinking ofthe armor of government immunity. Compensation statutes do not seem to carry a high political cost, and they provide several advantages to states: states with compensation statutes can predict costs; they will not be surprised by large 182. Id. 183. Id. 184. Id 1 85. See supra Part III.A. 1 (discussing the Federal Tort Claims Act). 1 86. See Rosenthal, supra note 169, at 838. 187. See /J. at 841. 188. Mat 842. 189. Id 190. Mat 799. 191. Mat 842. 20 1 1 ] WRONGFULLY INCARCERATED 527 awards in lawsuits; and there should be fewer wrongful convictions. On the other hand, the instrumental theory of liability does not seem to be a very strong underpinning for current compensation statutes. If it were—that is, if a compensation statute really acted like a lever to make a government actor behave a certain way—then we would see the implementation within these statutes of suggestions designed to change behavior. This is not the case. For example, states have not implemented the suggestion that funding for compensation statutes should come from the prosecutor's budget^^^ as a way of curbing overzealous prosecutors. The reason typically given—that the prosecutor in office at the time of a wrongful conviction may no longer be there when the fine is imposed^ ^^—shows that changing officials' behavior is not a goal of compensation statutes. Because states seem to ignore rather than harness a compensation statute's behavior-changing ability, it appears that most states' compensation statutes are not based on the instrumental theory of tort liability. 2. The Corrective Justice Theory of Tort Liability.—Moral rather than economic concerns animate the second major theory of tort liability: that of corrective justice. Under the correctivejustice theory, imposing tort damages on individuals "embodies a widely accepted moral obligation on the part of a wrongdoer to make the injured party whole. "^^"^ Imposing tort damages on the government is "based on an asserted moral entitlement to compensation when one has been the victim of a constitutional wrong."^^^ All of the current wrongfiil-conviction compensation statutes rest on the corrective justice theory of tort liability. Corrective justice is the theoretical justification for finding a moral obligation. The vehicle for achieving corrective justice is strict liability — perhaps "the most philosophically and procedurally sound [theory] for imposing 192. See, e.g., Evan J. Mandery, Efficiency Considerations ofCompensating the Wrongfully Convicted, 41 No. 3 Crim. L. BULL., ART. 4, at 1 (2005). Mandery's article opens with a bang: "Here is a simple, seemingly obvious response to the mounting evidence that innocents are being convicted at an intolerable rate: make prosecutors pay for their mistakes regardless of fault." Id. 193. Rosenthal, supra note 169, at 835 & 835 nn.152-53. For example, it is reasonable to believe that the time frame of concern to politicians is the next electoral cycle and that their political judgments are therefore made with only that time frame in mind. For that reason, elected officials might ignore litigation costs or liability exposure, believing that they have no real ability to reduce them quickly enough to affect the current electoral cycle. Id. (citing James M. Buchanan & Dwight R. Lee, Tax Rates and Tax Revenues in Political Equilibrium: Some Simple Analytics, 20 ECON. INQUIRY 344, 345-50 (1982)). On the other hand, Rosenthal continues that "there is reason for skepticism about this view of the time horizons of public officials—most politicians likely plan long careers in public service and will pay a political price if they are still in office when tort judgments must be paid." Id. 194. Mat 823. 1 95 . Id. For a discussion ofwhat constitutes constitutional error in wrongfiil conviction cases, see Garrett, supra note 1 1 . 528 INDIANA LAW REVIEW [Vol. 44:503 liability on a state."^^^ As explained by Lauren Boucher, "[t]he strict liability theory assumes that in 'any great undertaking . . . there are bound to be a number of accidents. '"^^^ Further, [b]ecause all citizens benefit from the operation of the criminal justice system (in the form of increased public safety), it is unfair that only one person should bear the cost of an error such as wrongful incarceration simply because he was the unlucky victim of the mistake. Instead, everyone should bear the burden equally. ^^^ Arguing for the passage of compensation statutes in 1999, Adele Bemhard discussed cases showing "that innocent people have been, and will continue to be, unjustly convicted, as an unfortunate but inevitable consequence of the routine operation of the criminal justice system."^^^ In her view, "neither traditional fault-based tort actions nor civil rights statutes provide a remedy"^^^ for unjust conviction. Under strict liability, however, there is no need to determine fault. Strict liability works well because it is the state, through operation ofone ofits most essential services—the criminal justice system—that has inflicted the harm. Although it may be impossible to hold any individual law enforcement officer, or any particular municipality, liable, the state's responsibility for the injury is sufficient to generate a moral obligation.^^^ The current wrongful-conviction compensation statutes, all based on strict liability, "do not require claimants to discover why the prosecution was erroneous, or who made mistakes which 'caused' the investigation to go awry, or even what those mistakes might have been."^^^ C Pragmatic Objections to Payment ofCompensation Do Not Hold Up Although theoretical bases support the government's payment of compensation to the wrongly convicted, those who do not believe that the government must provide such compensation generally present a pragmatic argument to support their view. However, the primaryjustification offered does not hold up under scrutiny, and strong pragmatic reasons exist to support the payment ofcompensation. Thejustification offered for inadequate compensation statutes or for none at all derives from the view that the state cannot right every 196. John J. Johnston, Note, Reasonover v. Washington; Toward a Just Treatment of the Wrongly Convicted in Missouri, 68 UMKC L. REV. 411,414 (2000). 1 97. Boucher, supra note 1 , at 1 1 1 (quoting Edwin Borchard, State Indemnityfor Errors of CriminalJustice, 21 B.U. L. REV. 201, 208 (1941)). 198. Id. (citing Borchard, supra note 197, at 208). 199. Bemhard, When Justice Fails, supra note 7, at 92. 200. Id 201. Id at 93. 202. Bemhard, supra note 47, at 409. 2011] WRONGFULLY INCARCERATED 529 wrong. 'The state cannot be expected to compensate every citizen forced to bear an unjust burden within its boundaries: '[c]ertain harms are simply accepted as part of life. '"^^^ This is the cost-of-doing-business argument, an argument that accepts that innocent people can and will be imprisoned as an unavoidable aspect ofthejustice system. The cost-of-doing-business argument should be repudiated for four reasons: (1) it does not save the state money; (2) it leads to treatment that is unfair; (3) it creates incentives to continue the unfair treatment; and (4) it leads states to violate the Constitution. 1. The Cost-of-Doing-Business Argument to Avoid Passing Compensation Statutes Does Not Save the State Money.—Accepting a cost-of-doing-business rationale does not save the state money. The most common justification for the cost-of-doing-business rationale is that it will strain state budgets to provide compensation to wrongly incarcerated persons who win their freedom.^^"* Perhaps this fear stems from occasional highly publicized lawsuits that gamer million dollar settlements for wrongfully incarcerated individuals.^^^ It has similarly been feared that compensation schemes for crime victims will create high award and management costs.^^^ That has not turned out to be the case with crime victim compensation statutes,^^^ and neither will it be the case with compensation statutes for the wrongfully convicted. A look at compensation statistics demonstrates that the fiscal argument fails. Gross's study of exonerations between 1989 and 2003 found that four states—Illinois, New York, Texas, and California—accounted for more than forty percent of the total of 340 exonerations.^^^ Illinois had fifty-four exonerations. New York had thirty-five, Texas had twenty-eight, and California had twenty-seven.^^^ Considering just these four states, this is an average of thirty-six exonerations per state over a fourteen year period, which in turn is between two and three per state per year, a number that cannot reasonably be claimed will break the bank. A look at DNA statistics also bears out that compensation awards will not bankrupt states.^^^ The number of people imprisoned without DNA analysis to 203 . Boucher, supra note 1 , at 11 00 n.226 (quoting Bemhard, When Justice Fails, supra note 7, at 92-93). 204. Fite,5wpranote8,at 1191 (citing Bemhard, When Justice Fails, supra note 7, at 105-06). 205. See cases set out in Garrett, supra note 1 1, at 44 n.32 (including some awards of up to $8.26 million). 206. Bemhard, When Justice Fails, supra note 7, at 100. Bemhard specifically mentions the opinion offormerNew York State Assistant District Attomey Richard Kuh, expressed at legislative hearings in New York on crime victim legislation. Id. 207. See id at 101 . However, this may be because "[rjestitution has been recognized as one of the 'most underenforced victim rights' available through the criminal justice system." Julie Goldscheid, Crime Victim Compensation in a Post-9/11 World, 79 TUL. L. REV. 167, 179 (2004). 208. Gross et al., supra note 1, at 541. 209. Id at 541 tbl.2. 210. DNA evidence was used to establish innocence in nearly half ofthe exonerations from 1989 to 2003. Boucher, supra note 1, at 1070 (citing Gross et al., supra note 1, at 524). 530 INDIANA LAW REVIEW [Vol. 44:503 establish their innocence is dwindling—either those cases have now had DNA analysis, or those prisoners are dying. As it becomes more common to do DNA testing on physical evidence at the investigatory stage, according to Bemhard, "the rate of DNA exonerations will inevitably slow. The number of convicted inmates who can locate material, relevant, and untested forensic material will dwindle, as will the number of individuals claiming compensation for unjust conviction."^^^ Along with fearing the cost ofimplementation, another motivation for states to pass grudging statutes—or none at all—is the fear that a state will compensate people who do not deserve to be compensated.^^^ This fear is also unfounded because "[IJegislatures can carefully draft a statute to prevent unwarranted claims from being considered."^ ^^ Under all compensation statutes, procedural requirements are rigorously enforced.^'"^ And "[w]hile statutory provisions are designed to compensate the wrongftilly incarcerated, they still require the plaintiffto meet a high burden ofproofbefore compensation will be granted. "^^^ Claimants therefore may not simply restate trial evidence.^ ^^ The claim of innocence "shall be verified by the claimant;"^^^ this cannot be done with "conclusory and self-serving testimony."^^^ Rather, claimants must fulfill statutory requirements to establish actual innocence, requirements that function to keep those whose convictions were overturned on procedural grounds from recovering.^ '^ A further safeguard for states is the role of trial courts. According to the Iowa Supreme Court, the district court's "predicate review and assessment ofthe 211. Bemhard, Justice Still Fails, supra note 7, at 7 1 5 . 212. Boucher, supra note 1, at 1098. 213. Id. at 1099. Boucher also points out that compensation statutes do not result in immediate and unquestioned state compensation, but rather, they create a cause of action. Id. She quotes a provision of the Ohio Code to illustrate: Notwithstanding any provisions ofthis chapter to the contrary, a wrongfully imprisoned individual has and may file a civil action against the state, in the court of claims, to recover a sum of money as described in this section, because of the individual's wrongful imprisonment. The court ofclaims shall have exclusive, original jurisdiction over such a civil action. Id. at 1099 n.221 (quoting Ohio Rev. Code Ann. § 2743.48(D) (West, Westlaw through 2010 legislation)). 214. E.g., Dvorak v. Pickaway Corr. Inst., No. 02AP-452, 2002 WL 31656236, at *3 (Ohio Ct. App. Nov. 26, 2002). 215. Frederick Lawrence, Declaring Innocence: Use ofDeclaratory Judgments to Vindicate the Wrongly Convicted, 18 B.U. PUB. Int. L.J. 391, 394-95 (2009). 216. See, e.g., Fudger v. State, 520 N.Y.S.2d 950, 953 (N.Y. App. Div. 1987). 217. E.g., N.Y. Ct. Cl. Act § 8-b(4) (McKinney 2003 & Supp. 201 1). 218. Vasquez v. State, 693 N.Y.S.2d 220, 220 (N.Y. App. Div. 1999). 219. See Michael J. Saks et al.. Toward a Model Act for the Prevention and Remedy of Erroneous Convictions, 35 New Eng. L. Rev. 669, 682 (2001); see also discussion supra Part III.A.2.a. 2011] WRONGFULLY INCARCERATED 531 claim . . . permits the district court to serve as a gatekeeper."^^^ A claimant may not deprive the court of its gatekeeper role. In an Ohio case, a defendant found to have acted in self-defense was acquitted of a murder charge.^^^ She argued that under collateral estoppel, she could sue for compensation without establishing actual innocence. The court rejected this argument because acquittal is an essential step that allows a claimant to get to the gate. Only with the acquittal does the court of claims open the gate and give the claimant the opportunity to demonstrate actual innocence.^^^ States whose requirements are very restrictive, as well as states just implementing compensation statutes, should look to states like New York for assurance that less restrictive statutes do not result in floods ofclaims.^^^ It does not appear that states with well-planned compensation statutes will suffer inordinate strains on their budgets. Similarly, it is unlikely that such states will compensate those who are not entitled to compensation. 2. The Cost-of-Doing-Business Argument for Refusing to Pass Compensation Statutes Leads to Treatment That Is Unfair.—It is unfair for the state to treat wrongful conviction and undeserved time in prison as harms that should be "simply accepted as part of life."^^"^ It is also unfair to expect people subjected to months or years ofundeserved incarceration to return to their lives as ifnothing has happened. Moreover, it is wrong for the state to compound the harm of wrongful incarceration by adding another harm—namely, release from incarceration without any provision for a meaningful return to society. Making provision for the wrongfully incarcerated is "[t]he least the community can do."^^^ Indeed, making such provision should be an integral part of criminal justice; "[t]he reparation of damages caused by erroneous criminal accusations ... is properly a cost of the operation of the criminal justice system. It is difficult to see why the innocent victims should be forced to absorb this cost."^^^ In clarifying the parameters ofNew York's compensation statute for the wrongly imprisoned, a New York court said that "the evil sought to be remedied was the likelihood of no recovery."^^^ No state should tolerate the likelihood that a wrongfully convicted person might have no remedy. 3. The Cost-of-Doing-BusinessArgumentfor WrongfulIncarceration Leads to Moral Hazard.—Accepting the cost-of-doing-business rationale provides no incentive for the justice system to stop practices that lead to unfair treatment. Thus, this rationale leads to moral hazard. Moral hazard is created when there 220. State v. McCoy, 742 N.W.2d 593, 596 (Iowa 2007). 221. Walden v. State, 547 N.E.2d 962, 963 (Ohio 1989). 222. See id. at 966-67. 223 . See Boucher, supra note 1 , at 1 098-99 nn.2 15-16. 224. MatllOOn.226. 225. Bemhard, When Justice Fails, supra note 7, at 112 (quoting EDWIN M. BORCHARD, Convicting the Innocent: Errors of Criminal Justice 392 (1932)). 226. Adam I, Kaplan, Comment, The Case for Comparative Fault in Compensating the Wrongfully Convicted, 56 UCLAL. REV. 227, 241 n.86 (quoting Rosenn, supra note 161, at 716). 227. Carter v. State, 546 N.Y.S.2d 648, 650 (N.Y. App. Div. 1989). 532 INDIANA LAW REVIEW [Vol. 44:503 are no consequences for bad behavior. As columnist David Sirota puts it, "without consequences—or worse, with rewards—for wrongdoing, there is an incentive to do wrong."^^^ When the state makes no provision, or only minor provision, for released individuals, the state excuses itselffrom responsibility for errors and misconduct in criminal investigations, trials, and sentences. No consequences flow from the bad behavior. This lack ofconsequences effectively tells the criminal justice community that errors and misconduct will be overlooked. Thus, the state's disinterest creates a moral hazard: an incentive for the criminal justice system to continue doing business as usual. When the state creates the moral hazard of"business-as-usual," the state will continue to tolerate preventable wrongs. Setting free a wrongfully convicted person is the ultimate expression that preventable wrongs indeed occurred. Under a cost-of-doing- business rationale, there is no incentive to eliminate preventable wrongs. Courts have a role to play in rejecting the cost-of-doing-business rationale. One way to do so is to ensure that there are consequences for wrongdoing. A number of trial courts have admonished jurors to ignore prosecutors' improper suggestions to the jury.^^^ Appellate courts have reversed and remanded cases because of prosecutors' misconduct^^^ or improper methods.^^^ Another way courts play such a role is through interpretations ofburden-of-proof language in their states' enabling statutes. Under many statutes, exonerees trying to establish factual innocence must do so by presenting "clear and convincing evidence. "^^^ The clear and convincing evidence standard is an elevated standard.^^^ Three statutes, however, direct courts to make allowance for the difficulty ofproducing clear and convincing evidence when claims are brought years after the original trials. ^^"^ When the statute couples strict requirements with flexibility, courts 228. David Sirota, Moral Hazards—and Consequences, S.F. Chron., Dec. 1 1 , 2009, at A24, available at http://articles.sfgate.com/2009-12-l 1 /opinion/172207281 moral-hazard-senate- democrats-bemanke . 229. E.g., Baker V. State, 906 A.2d 139, 148-49 (Del. 2006); Phelps v. State, 360N.E.2d 191, 192-93 (Ind. 1977). In Helleson v. State, 5 S.W.3d 393, 397 (Tex. Crim. App. 1999), the prosecutor was told he could mention parole law but could not discuss it in regard to the sentence to be determined. When he did, the court told the jury to disregard the prosecutor's remarks. Courts do this routinely, but ifnot carefully worded, the court's warning to the jury might actually make the problem worse by highlighting the improper remarks. People v. Bolden, 589 P.2d 396, 400n.5(Cal. 1979). 230. E.g., DeFreitas v. State, 701 So. 2d 593 (Fla. Dist. Ct. App. 1997). 231. Schoels v. State, 966 P.2d 735, 743 (Nev. 1998) (Springer, C.J., dissenting). 232. E.g., Me. Rev. Stat., tit. 14, § 8241(2) (West, Westlaw through 2009 2d Reg. Sess.); N.J. Stat. Ann. § 52:4C-3 (201 1); W. Va. Code Ann. § 14-2-13a(f)(l) (West, Westlaw through 2011 Reg. Sess.). 233. "The clear and convincing evidence standard is somewhere between the preponderance standard of civil cases and the reasonable doubt standard of criminal cases." In re G.B.R., 953 S.W.2d 391, 396 (Tex Crim. App. 1997). 234. N.Y. Ct. Cl. Act § 8-b( 1 ) (McKinney 2003 & Supp. 201 1); N.J. Stat. Ann. § 52:4C-1; W.Va. Code Ann. § 14-2-13a(f). 2011] WRONGFULLY INCARCERATED 533 have the tools to issue decisions that whittle away at the cost-of-doing-business rationale.^^^ When statutes are not explicit, a court's understanding oflegislative intent may be similarly important. For example, a Louisiana court's interpretation was influenced by its understanding that legislative intent did not limit "the introduction of evidence related in any way to the conviction and the proof of factual innocence."^^^ When statutes are not explicit, courts may facilitate consequences for wrongdoing by adopting a preponderance of the evidence standard instead of a clear and convincing evidence standard.^^^ 4. The Cost-of-DoingBusiness Argumentfor WrongfulIncarceration Leads States to Violate the Constitution.—Finally, accepting the argument that wrongful incarceration is a cost of doing business leads to the ultimate moral hazard: the continued acceptance of constitutional violations. In a criminal appeal based on constitutional error, the court's focus is "on whether evidence of guilt could excuse constitutional error."^^^ In effect, such a focus means that the court is balancing the possibility that the accused is guilty against the certainty that a constitutional error was committed. Rather than aiming for the elimination of constitutional errors from criminal trials, this focus invites the routine repetition of constitutional errors. Whenever an exoneree succeeds in winning release after years ofwrongful confinement, sympathy grows among the public for the payment of compensation. Tort-based compensation statutes not only respond to this sympathy, but also may lead to criminaljustice reforms in such areas as mistaken 235. The New Jersey statute, in discussing the burden of proof that exonerees bear in establishing factual innocence, states that it is the intent of the Legislature that the court, in exercising its discretion as permitted by law regarding the weight and admissibility of evidence submitted pursuant to this section, may, in the interest ofjustice, give due consideration to difficulties of proof caused by the passage of time, the death or unavailability ofwitnesses, the destruction ofevidence, or other factors not caused by such persons or those acting on their behalf N.J. Stat. Ann. §52:4C-1. 236. In re Williams, 984 So. 2d 789, 793 (La. Ct. App. 2008) (emphasis added). Although the result—^vacatur ofthe trial court's award ofcompensation—was bad for the exoneree, the case clarifies the burden ofproof and the steps in establishing proof of innocence. 237. Waldenv. State, 547N.E.2d962(Ohiol989)(applyingOfflOREV.CODEANN.§ 2305.02 (West, Westlaw through 2010 legislation)); Duncan v. State, No. 5625, 1972 WL 16790 (111. Ct. CI. Apr. 12, 1972) (applying 37 III. Comp. Stat. Ann. § 439.8(c) (1967) and interpreting how to prove innocence of the fact of a crime). A claimant seeking to prove an unjust conviction claim carries a heavy burden of"evidence that is neither equivocal nor open to opposing presumptions." Solomon v. State, 541 N.Y.S.2d 384, 385 (N.Y. App. Div. 1989). 238. Garrett, supra note 1 1 , at 38. In the introduction to this article, Garrett explains how the development of harmless error rules in criminal cases makes it hard for an accused to establish innocence. Id. He says that wrongful conviction lawsuits based on tort liability may have a dramatic reformative effect because they may change the "truth-defeating nature" of aspects of criminal procedure. Id. at 36. 534 INDIANA LAW REVIEW [Vol. 44:503 eyewitness identification,^^^ crime lab error,^'*^ and ineffective assistance of counsel.^"*^ Reforms in these areas cut down on the potential for constitutional violations. When constitutional violations are perceived to carry a cost, justification for the cost of doing business evaporates. A wrongful-conviction compensation statute creates incentives that make it worthwhile for state actors to conform their conduct to the Constitution. Assuming that a compensation statute makes a department of government responsible for its constitutional violations, the motivation ofthat department to overlook such violations may diminish. Unconstitutional practices that a department might previously have ignored may no longer seemjustifiable when violations leading to wrongful convictions have consequences for those who committed them. An argument can be made that imposing consequences on government actors for unconstitutional behavior will tie the government's hands. However, consequences need not be unlimited. Rosenthal explains this in political terms. According to Rosenthal, a constitutional right should not depend on whether the right is politically acceptable: Inherent in the concept ofa constitutional right is that its protection does not depend on the political acceptance of the right at stake. Thus, political accountability is an unacceptable method for securing constitutional rights; the Constitution protects even the unpopular or politically inexpedient. . . . [A] law of constitutional torts must place pressure on the government to conform all of its conduct to the Constitution. That does not imply, however, that damages are always properly awarded for a constitutional violation. Once one understands that the primary virtue of damages awards against the government is to create a political incentive to undertake loss prevention, there is ample room for damages-limiting doctrines that protect the interests of the taxpayers and avoid unwarranted reallocation of scarce public resources. ^"^^ This means that passing wrongful-conviction compensation statutes in no way ties a government's hands. Passing wrongful-conviction compensation statutes will create political incentives for loss prevention, i.e., improving criminal justice practices, if part ofthe funding for the damage awards comes from the departments or offices that have the most ability to prevent constitutional violations. Some part of the damage award must come from police and prosecutor budgets because their actions directly create or prevent these violations. But statutory damage caps are acceptable because they "preserve political pressure on government to conform 239. One among many articles dealing with criminal justice reform is Boucher, supra note 1 , at 1074-78. 240. Id. at 1078-79. 241. Mat 1080-82. 242. Rosenthal, supra note 169, at 856 (internal citation omitted). 2011] WRONGFULLY INCARCERATED 535 its conduct to the law but mitigate the anomalies associated with governmental damages liability. "^"^^ The aim of damage statutes should be "[a] regime of limited liability that nevertheless imposes a sufficient political price to minimize the likelihood of constitutional violations."^"^"^ Translated to the compensation issue, this means that the government that created the harm then passes a statute to give damages for the harm. Because the government must continue to fulfill its other roles, the remedy will be limited. But a primary goal ofthe statute is to minimize the likelihood that the government will convict and imprison innocent persons. Therefore, the remedy should inflict some pain that matters on the "bad" actors. Suggestions such as fining or charging the prosecutor who brought the case will not work because that prosecutor may be gone, and no other prosecutor will see the remedy as cautionary.^"^^ But taking some portion of the compensation money from the budget of prosecutors would exact "a sufficient political price"^"^^ because any prosecutor could expect to lose funding whenever damages are awarded. D. Pragmatic Reasons Support the Payment ofCompensation Refusing to pass generous wrongful-conviction compensation statutes has no practical justification. Looked at pragmatically, a refusal to pay compensation based on the cost-of-doing-business rationale cannot be justified. Paying compensation does not strain state budgets—and not only is refusing to pay compensation unfair, it also creates disincentives to improve bad practices and leads to constitutional violations. Further, pragmatic reasons exist for putting fair and generous compensation statutes into place. First, passage ofstatutes contributes to a rebalancing ofpriorities. Ifthe state does not take adequate steps to compensate the individual harmed by its processes, it demonstrates that it lacks responsibility for the errors. The state's demonstration that it lacks responsibility allows and even encourages further 243 . Id. at 863 . Rosenthal does not illustrate anomalies. Apossible example is seen in Rooney V. United States, 634 F.2d 1238 (9th Cir. 1980). Plaintiff Rooney was injured working for a contractor hired by the federal government. All three parties were negligent, but the government argued it could not be liable for damages "apportionable to its joint tortfeasor, the contractor." Id. at 1245. The court said that "[ujnder California law, each concurrent tortfeasor in a . . . comparative negligence case is jointly liable with the others. This rule applies regardless of the apportionability of negligence .... Since each defendant's negligence was a proximate cause of Rooney' s indivisible injuries, each defendant is liable for the full amount ofdamages." Id. (internal citations omitted). Thus, the court found the government responsible for all damages except the thirty percent attributable to the comparative negligence of the plaintiff The result, according to the court, is that "[w]e are faced with an anomaly which we must accept: the [gjovemment, which is the least culpable ofthe three ofthe negligent parties, will bear the greatest burden in damages." Id. The court affirmed judgment for the plaintiff. 244. Rosenthal, supra note 169, at 863. 245. See generally Medwed, supra note 9. 246. Rosenthal, supra note 169, at 863. 536 INDIANA LAW REVIEW [Vol. 44:503 wrongdoing. Putting wrongful conviction statutes into place signals that the state is aware it may make mistakes and that those mistakes may be grave. It also signals that those who either commit or do not prevent mistakes in criminal process shall bear some responsibility for wrongful convictions. Making it easier for an exoneree to receive compensation through statute should result in fewer false convictions since prosecutors' offices may be motivated to pay more attention to fair trial techniques.^"^^ In fact, compensation statutes should be designed to make it easier, not harder, for exonerees to receive compensation.^"^^ Draconian compensation statutes rest on the argument that a restrictive statute will lead to few awards because it is so hard for exonerees to qualify. That rationale does not comport with our fundamental understanding of a justice system that protects the innocent from the ultimate deprivations: those of life and liberty. Second, compensation statutes allow governments to forecast costs. Errors will occur, which explains the cost-of-doing-business argument. But tolerating errors in the criminaljustice system under a cost-of-doing-business rationale may turn out to be costly for the state as well as unfair to the exoneree whose harm is justified under this rationale. Implementing compensation statutes allows the state to estimate its costs and not leave itself open to unexpected and potentially high damage awards. Passing compensation statutes that streamline the process of applying for compensation may lead to lower costs since the state will presumably be defending against fewer exoneree common law tort suits against prosecutors and § 1983 suits against municipalities and the police. Passing compensation statutes that make it easier for exonerees to receive compensation will enable the state to set up a predictable cost structure. Refusing to compensate exonerees as a cost-containing measure may backfire since sympathetic juries are likely to give large damage awards to the wrongfully convicted. For instance, the City ofChicago paid $1.5 million to a man wrongly convicted of murder after a city crime lab analyst was found to have falsified reports.^"^^ In another Chicago case, the city agreed to pay $9 million to settle a wrongful rape conviction lawsuit.^^^ Similarly, New York City paid $5 million when it came to light that the prosecution had suppressed exculpatory evidence in a rape case.^^^ 247. SeeGarrQU, supra note 1 1, at 53-56, 71-99. 248. For exonerees, the process should be more like submitting an application than filing a lawsuit. Making the process an administrative rather than adversarial proceeding will reduce the toll on exonerees and the costs to government. 249. See Steve Mills et al., When Labs Falter, Defendants Pay, Cm. Trib., Oct. 20, 2004, available at http://truthinjustice.org/labs-falter.htm. 250. Maurice Possley & Gary Washburn, City WillPay $9 Million in FalseJailing, Chi. Trib. , Jan. 28, 2006, at 1 , available at http://articles.chicagotribune.com/2006-0 1 -28/news/060 1 280288_ Idna-testing-chicago-police-supt-false-confessions. 25 1 . Andrea Elliott, City Gives $5 Million to Man Wrongly Imprisoned in Child 's Rape, N.Y. Times, Dec. 16, 2003, at B3, available at http://nytimes.com/2003/12/16/nyregion/city-gives-5- million-to-man-wrongfully-imprisoned-in-child-s-rape.html. 2011] WRONGFULLY INCARCERATED 537 If, instead of reacting to lawsuits, states develop plans for paying compensation under wrongful-conviction compensation statutes, they can encourage procedural changes that will lead to fewer instances ofwrongful arrest and conviction. At the same time, they can prepare for the predictable costs of the scheme. IV. Funding Compensation Statutes A state may refuse to pass a compensation statute for the wrongfully convicted. The state does not, however, escape paying for the harm it has tolerated, if not actually caused. As difficult as it is for exonerees to sue on wrongful imprisonment grounds, exonerees do win lawsuits, and when they do, their damage awards are often significant.^^^ Some entity of government pays when an exoneree wins ajudgment against a prosecutor or a municipality. States should therefore accept their responsibility for wrongful convictions and implement fair and fairly administered compensation schemes. Recognizing that exonerations will occur means that the state can prepare for the inevitable payment of compensation instead of trying to find ways to deny recovery to wrongfully imprisoned persons. Rosenthal points out that many proposals calling for governments to pay tort damages require the government to assume costs in order to avoid losses experienced by others; consequently, they all have a negative impact on government budgets, regardless of the externalized benefits they may produce—unless one can make the rather implausible claim that these proposals would be so popular that the voters would tolerate an increase in taxes to fiind the new expenditures that they necessitate. Yet one cannot find in any ofthe proposals for new governmental liability any consideration of the consequences that new liabilities will have on government budgeting, or on those who depend on government budgets for the variety of social goods allocated through that process. ^^^ By consequences, Rosenthal means that increased government spending in one area will result in less money for government spending in other areas. It is not enough for states to pass compensation statutes; they must also determine how these statutes will be funded. Current wrongful-conviction compensation statutes do not pay much attention to the sources offunding. In California, for example, exonerees are not discussed explicitly in budget information on the state's website.^^"^ California 252. See Robert T. Garrett, Texas House Votes to Boost Compensation for Wrongly Imprisoned, Dall. MORNING NEWS, Apr. 25, 2009, available at http://www.dallasnews.coin/ sharedcontent/dws/dn/dnacases/stories/DN-innocent_25tex.ART.State.Edition 1 .4a9c7 1 a.html. 253. Rosenthal, supra note 169, at 845. 254. See generally Letter from Dep't of Finance to Dep't of Budget Officers, Dep't Accounting Officers, & Dep't of Finance Budget Staff (Sept. 28, 2010), available at 538 INDIANA LAW REVIEW [Vol. 44:503 funds its wrongful-conviction compensation statute from the state's general fiind^^^ pursuant to the California Penal Code.^^^ A specific source within the general fiind is not designated. The state's department ofcorrections receives its funding from the general fund.^^^ Perhaps funding comes from the corrections budget, perhaps not. The general fund is a fairly haphazard source, as the provision of fiinds for DNA testing illustrates. In 2001, California mandated that all costs associated with representing inmates pursuant to Penal Code section 1405 to investigate and, if appropriate, file motions for DNA testing of biological evidence where such testing could prove innocence, be borne by the State. In that same year, California allocated $1.6 million dollars over two years to provide counsel to assist inmates with innocence claims. For 2002 and 2003, the NCIP [Northern California Innocence Project] and CIP [California Innocence Project] received state funding. That funding was discontinued as a result ofstate budget cuts in 2003.^^^ Other states have equally vague sources of funding. Alabama pays awards out ofany available state fiinds.^^^ New Hampshire pays claims from any money in the treasury not otherwise appropriated.^^^ North Carolina provides awards from its contingency and emergency fund or other available state funds.^^^ These states' statutes at least mention some funding source. Most, however, are silent. The most completely thought out statute seems to be Maryland's, which specifies that the board ofpublic works should make payments to exonerees using money in the general emergency fund or money provided by the governor in the annual budget.^^^ Ifgovernments must "assume costs" in an attempt to avoid losses that others experience at their hands, they need to pass compensation statutes whose funding sources will be secure. Assuming a state is revisiting its statute or creating a new one, how can it fund the statute? One way to pay for harm is through insurance. In an insurance scheme, the insured protects against a risk by paying premiums to an insurer to http://www.dof.ca.gov/budgeting/budget_letters/documents/BL10-26.pdf. 255. Cal.PenalCode§§ 4900-06 (2010). 256. Id. § 2713.1. 257. Kaiser Family Found., California: Distribution of State General Fund Expenditures (in Millions), SFY2008, http://www.statehealthfacts.org/profileind.jsp7rgn =6&ind=33&cat==l (last visited Feb. 16, 201 1). In fiscal year 2008, the department of corrections received 9.4% of the general fund. Id. 258. Cal. Comm'n on the Fair Admin, of Justice, Final Report 107 (Feb. 22, 2008), available at http://www.ccfaj.org/documents/CCFAJFinalReport.pdf (emphases added). 259. Ala. Code §29-2-160(a) (2003). 260. N.H. Rev. Stat. §541-8:13 (2007). 261. N.C. Gen. Stat. § 148-84 (LEXIS through 2010 Reg. Sess.). 262. Md. Code Ann. State Fin. & Proc. § 1 0-50 1 (a)(2) (West, Westlaw through 20 1 Reg. Sess.). 2011] WRONGFULLY INCARCERATED 539 cover that risk.^^^ Employers provide insurance "to account for the risk of liability that employees face."^^"* Governments offer insurance to public employees through statutes, policies, or collective bargaining agreements. ^^^ Consumers buy insurance to extend product warranties. They buy trip insurance to minimize losses from having to cancel a trip. Self-employed workers buy medical insurance. Fathers and mothers buy life insurance to safeguard their children if the parents die.^^^ In all of these contexts, the purchaser of the insurance buys the insurance because he understands that a danger ofharm exists generally and that the harm may befall him specifically.^^^ Yet even with sensational news stories about people being set free after years and years of wrongful imprisonment, there is no wrongful conviction insurance. Discussing ways in which requiring compensation for the wrongly convicted should lead to improvement in the criminal justice system, Evan Mandery says that [i]nsurance theory suggests that in the open market consumers would not choose to purchase "constitutional tort insurance." Generally speaking, people choose to buy insurance against losses that reduce wealth, but do not insure against intangible harms, such as emotional distress or affronts to . . . [dignity], that have no direct or indirect effect on wealth. Since most constitutional torts cause intangible damages, insurance theory argues that requiring citizens to purchase insurance against these kinds of injuries reduces their net welfare. ^^^ Arguably, wrongful incarceration is a constitutional tort that reduces net wealth and inflicts an array ofintangible damages. But the point is that people will most likely not voluntarily spend money, and thereby reduce their net worth, to insure themselves against an event that seems so remote from the average person's experience. Assuming individuals will not buy wrongful conviction insurance, but realizing that individuals are harmed by wrongful conviction (generally through no fault oftheir own), should states impose higher taxes on citizens to spread out the risk? In the case of strict products liability, consumers pay premiums to manufacturers—^through higher product prices—in exchange for indemnification against injuries caused by the products. The thought is that manufacturers are better able to bear the costs of injuries than individual consumers [T]he premium . . . must be one that they [consumers] would choose to pay in a private market.^^^ 263 . See Rosenthal, supra note 1 69, at 820-2 1 . 264. Id. at 820. 265. Mat 819. 266. Mandery, supra note 192, at 5. 267. I do not include automobile insurance in this discussion because its utility to the public is readily apparent, unlike insurance for something like wrongful convictions. 268. Mandery, supra note 192, at 7. 269. Id. 540 INDIANA LAW REVIEW [Vol. 44:503 The analogy is between consumers paying premiums to manufacturers through higher prices and citizens paying premiums to the government through higher taxes. Governments are unlikely to see raising taxes as a solution because raising taxes imposes a political cost on elected government officials. Voters may not re-elect officials who raise taxes. A government will therefore avoid raising taxes ifthose taxes are to insure against a constitutional harm that is typically not the kind of harm people will insure against with their own money. If states are not willing to pay for compensation statutes through direct taxation, is there some other way for states to assume this burden? A more useful analogy is to see states as manufacturers insuring themselves against injuries caused by their product, the criminal justice system. Manufacturers are thought to be better able to "to bear the costs of injuries than individual consumers."^ ''^ But manufacturers can bear these costs because they get them back from consumers in the form of higher prices. Since the states do not want to raise taxes to pay for wrongful convictions, they need an insurance company of their own. So the analogy shifts again: now each individual state is a consumer, and the group ofall the states becomes the insurer. Banding together, the states could create a wrongful convictions funding pool much larger than any single state's fund for damage awards. All the states would contribute,^^^ but only a few states would likely need to use the funds in any particular year. In this manner, the funds will be able to grow. A state could also create its own fund to cover the costs of compensating exonerees. Ideally, the fund would grow large enough that compensation could be paid from the interest it generates, and not from the principal. An argument can be made that there is no need to create a dedicated fund to cover the costs of exoneree compensation because specific awards "are a small percentage of any state's annual budget."^^^ Lookingjust at numbers, this seems to be a valid point. For example, California's total budget expenditure for 2008 was about one hundred billion doUars.^^^ An award ofone or two million is nothing in the face of that number. Would this amount be more significant if it is targeted to come out of the corrections budget instead of the general fund? Even a small award makes up a larger percent ofthe corrections budget than the overall state budget. California's corrections budget for 2008 was 9.4% of the state's total budget.^^"^ This figure is certainly a small percentage of the whole state budget; however, it still amounted to about $9.6 billion. When corrections spends over $9 billion 270. Id. 27 1 . States could contribute based on the size oftheir felony prison populations, for example. 272. Karin D. Martin, A Model State Policyfor the Treatment ofthe Wrongfully Convicted, Life AfterExonerationProgram 31 (2006), http://www.exonerated.org/content/images/articles/ model%20state%20policy%20-%20karin%20martin.pdf. Martin conducted this study as part of the requirements for the Master of Public Policy degree of the Goldman School of Public Policy, Univ. of Cal., Berkeley. Id. at 1. 273. Kaiser Family Found., supra note 257. 274. Id 2011] WRONGFULLY INCARCERATED 541 a year, an award of $1 million or $2 million should be affordable. But this argument—that there is no need to create a dedicated fund because specific awards are relatively small—must be a spurious argument because some states do not provide compensation at all, and those that do have compensation statutes do not spontaneously make awards, histead, they force the exoneree to sue the state to set the compensation machinery in motion. Therefore, the insignificance of the amount does not guarantee payment. Assuming that a state decides to create a fund to pay for compensation claims, the question is how the state will make payments into the fund. Three sources can be tapped. The first source of funds is prosecutors' budgets. Whenever an exoneree is awarded compensation for wrongful incarceration, the attorney general's office should be required to contribute to the fund.^^^ Even if the process for establishing factual innocence reveals that the state was without fault, the attorney general's office must still make the payment to the fund.^^^ Also, in those few states that have implemented administrative procedures instead of adversarial ones,^^^ the attorney general's office should still be required to pay into the fund. The second source offunds is the corrections budget. The fund could be set up to require a yearly payment from the corrections budget, which could be a set amount or a fluctuating percentage. In either case, it can be calculated in various ways. The amount could be based on the size of the prison population. Alternatively, it could be based on the number of felons in prison or the average number of exonerations per year over a set period. In California, for example, twenty-seven claims for exoneration were approved between 1989 and 2003.^^^ Taking the ratio to be twenty-seven exonerations per fifteen years, the average 275. This proposal may raise the ire of prosecutors. See Medwed, supra note 9, at 157. 276. An example is "if the erroneous conviction were entirely the fault of a perjurious witness." Saks et al., supra note 219, at 682 n.35. Incidentally, the state may bring criminal charges against the perjurious witness. Id. 111. Alabama's remedy is exclusively administrative. See Ala. Code § 19-l-\5\ to -165 (2003). California has an administrative scheme. See Cal. Penal Code § 4900 (2010). North Carolina and Wisconsin also have administrative schemes. See N.C. Gen. Stat. § 148-83 (LEXIS through 2010 Leg. Sess.); Wis. Stat. Ann. § 775.05 (West, Westlaw through 2009 Reg. Leg.). In Texas, an exoneree applies for administrative remedies. See Tex. Crv. Prac. & Rem. Code An^n. § 103.05 1 (West, Westlaw through 2009 Reg. Leg.). In New Hampshire, for a claim for less than $5000, the claimant follows administrative procedures. For a claim between $5000 and $50,000, there is concurrent jurisdiction between the administrative and judicial fora. Above $50,000, the claimant must follow thejudicial route and sue in superior court. N.H. Rev. Stat. Ann. § 541-B:9 (2007). In New Hampshire, then, most wrongful compensation claims would be brought as suits against the state in superior court. In Tennessee, the board of claims investigates and hears administrative claims for compensation. Tenn. Code Ann. § 9-8- 108(a)(7) (West, Westlaw through 2010 Reg. Sess.). 278. Cal. Comm'n on the Fair Admin, of Justice, supra note 258. In addition, twenty-five claims were denied and nineteen were dismissed as untimely, incomplete, or because the claimant was still in prison. Id. 542 INDIANA LAW REVIEW [Vol. 44:503 yearly number ofexonerations would be 1 .8, or about two exonerations per year. The third source ofrevenue comes from re-visioning how the department of corrections spends money to maintain inmates. The state's correctional authority must be seen as establishing a "line" in the budget for each prisoner. This line should not end with a prisoner's exoneration. Each year, the money that would have been spent on the (now-exonerated) prisoner would go into the exoneree's compensation fund. The exonerated prisoner would receive the set statutory amount annually until he has received payment for each of the years that he served in prison. If an exoneree dies before receiving his full payout, the remainder of the statutory amount would go to his heirs annually until the exoneree's years ofprison service are compensated. Even after the exoneree or his estate has received the full payout to which he is entitled, however, the exoneree's budget line need not evaporate. In order to build up the fund, corrections could continue to make payments from the exoneree's prison budget line until the exoneree actually dies or until he was projected to die, whichever is longer. For a life sentence, pa3mient should continue for the projected actuarial life span of the exonerated person. AH three of the proposed revenue sources for a state's own compensation fund are based on the two theories underlying tort liability: (1) the corrective justice theory that the state has a moral obligation to make victims whole^^^ and (2) the instrumental theory that the threat of liability creates incentives to avoid behavior that triggers liability.^^^ In corrective justice terms, it is appropriate to impose some of the moral obligation to make victims whole on prosecutors' offices since those offices bear some responsibility for the harm. Making the office strictly liable under the instrumental theory obviates the necessity to find any particular culprit, which is useful if specific prosecutors are no longer in office.^^^ Even though the prosecutor who allowed a wrongful conviction to occur may have left the department, every prosecutor taking office after passage ofthis statute will know that a portion ofthe funding for exoneree awards comes from the prosecutor's budget. As noted earlier in this Article, prosecutors will resist this requirement.^^^ Describing existing statutes, Medwed writes that "[ajlthough these statutes do not expressly designate that funds used for this compensation should be drawn directly from prosecutors' budgets, the impact of these payouts on state coffers could conceivably have an indirect effect on the amount of money allocated to prosecutors partially dependent on state funding."^^^ I suggest that the funding under revised statutes should have a direct effect on money allocated to 279. See supra Part III.B.2. 280. See supra ?2iXXm.B.\. 281. Cf. Medwed, supra note 9, at 1 44 (assigning post-conviction motions based on whether lawyer who prosecuted case was still in office). 282. Seesupranote 275. I realize that this proposal implicates the very reason that prosecutors may resist post-conviction claims ofinnocence. However, all participants in wrongful convictions should participate in the remedy. 283. Medwed, supra note 9, at 157 (internal footnotes omitted). 2011] WRONGFULLY INCARCERATED 543 prosecutors. Knowing that their budgets will be affected every time a wrongfully convicted person is exonerated should create a stronger incentive for prosecutors to avoid the practices that give rise to wrongful convictions.^^"^ The second source of revenue—the automatic yearly payment from the corrections budget to the compensation fund—works similarly. It is not possible at the level of a huge department to blame specific individuals for the miscarriages of justice that result in wrongful convictions. But holding that department strictly liable for a significant portion of compensation funding is appropriate because that is the only department that could have condoned bad practices and can now stop them. The third source ofrevenue—requiring corrections to continue carrying the expense of maintaining a prisoner by paying into the fund what it would have spent if the prisoner had not been exonerated—similarly satisfies both theories oftort liability. Continuing to "pay" for a prisoner who has left the system helps provide a viable fund that could make future victims whole. Requiring corrections to make these payments puts pressure on the department of government that is both most likely and most able to make changes, leading to fewer wrongful convictions. There is a difference between the first two revenue streams and the department of corrections' budget "line." The first two revenue streams will yield reasonably predictable amounts because the amounts are based on averages. The method of calculation (and re-calculation, from time to time) of these averages must be established in the statute. By contrast, the third source, which is the amount the state pays to the fund under the budget line concept, is more fluid. That amount depends on several variables. One variable is how many exonerated individuals are receiving compensation at any one time. The more exonerees receiving compensation, the higher the amount coming from budget lines will be. The second variable is whether an exoneree was on death row when he was exonerated and released. The cost to the state to maintain a person on death row is higher than the cost to maintain a prisoner serving a life sentence.^^^ When a death row inmate is exonerated, therefore, the state would put into the fund the difference between what it costs to maintain a death row inmate and an inmate serving a life sentence without the possibility ofparole.^^^ 284. The creation of incentives to avoid bad practices is a third pragmatic reason in favor of wrongful-conviction compensation statutes. See supra Part III.D. 285. ANew Jersey commission studying the death penalty found that the state would save $1.3 million per year in costs of incarceration if it switched just one death row inmate's sentence to a sentence oflife without parole. Joe Bargmann, Debating the Cost ofCapital Punishment, Parade, Jan. 31, 2010, at 6, available at http://parade.com/news/intelligence-report/archive/100131- debating-the-cost-of-capital-punishment.html. Natasha Minsker, death penalty policy director of Northern California's ACLU affiliate, has said that changing death sentences to permanent imprisonment would save California $ 1 billion over five years. Scott Smith, State Moves Closer to Resuming Executions, STOCKTON Rec, Jan. 6, 2010, available at http://www.recordnet.com/ apps/pbcs.diyarticle?AID=/20 1 00 1 06/A_NEWS/ 1 060309. 286. In a generous statute, the compensation for an exonerated death row inmate would be 544 INDIANA LAW REVIEW [Vol. 44:503 But even allowing for a higher level of compensation because of the traumatic experience of facing execution, the annual cost of compensation for an exonerated death row inmate could be lower than the annual cost to maintain that person on death row. Unpredictable results may also arise in the case ofolder prisoners. Thus, the age of the prisoner is the third variable. The cost to the state of paying into the fund for elderly exonerees is probably going to be less than the cost of maintaining them as older prisoners. Although it is true that "like other segments of the population, inmates are living longer,"^^^ many criminology researchers consider offenders to be "elderly" at fifty-five.^^^ According to Snyder, this is because of "the shorter life expectancy and lower health status of criminal offenders."^^^ If inmates are elderly at fifty-five, with impaired health and shortened life expectancy, they can be expected to develop the illnesses of age sooner than those who are not inmates. Older prisoners need more medical care; as a result, they cost more to maintain.^^^ If a prisoner is exonerated before developing the illnesses ofage, it is possible that the budget line payment that the state continues to make into the fiind every year on his behalf will be less than the actual cost to maintain the prisoner. Conclusion Wrongful convictions cost states money, resources, public goodwill, and moral authority. Well-planned wrongfiil-conviction compensation statutes help to mitigate all of these costs. But whether states contribute to a multi-state pool or create their own dedicated fiinds, state costs will certainly remain. Initially, states will need to spend money to get their funds operational. And states will have to commit continuing resources to maintaining the funds. Nevertheless, passing wrongfiil-conviction compensation statutes that include identified funding sources has important advantages over the haphazard systems generally in place now. The human cost to exonerees will be less; the financial cost to the states will be more predictable and more manageable. Of course, it is better for exonerees not to have to fight yet again to receive compensation. It is better for states, too. Their criminal processes will improve. Their reputations will not be savaged in the press whenjuries make huge awards to exonerees. Presumably, it will be easier for states to fulfill their moral obligations to their citizens. And a citizenry often C3^ical about the justice system may begin to find renewed optimism that there actually is justice in the system. adjusted to reflect that the exoneree was on death row. 287. Cindy Snyder et al., Older Adult Inmates: The Challenge for Social Work, 54 Soc. Work 117, 117(2009). 288. Id 289. Id 290. See Jonathan Turley, Older Prisoners and Overcrowding, RES IPSA LOQUITUR Blog (Dec. 6, 2007), http://jonathanturley.org/2007/12/06/older-prisoners-and-overcrowding/.