Justice Denied

John Thompson spent 18 years in prison, 14 of them on death row, for a crime that it seems very likely he did not commit. Prosecutors were aware that blood found at the crime scene was not Mr. Thompson’s, but they failed to turn this evidence over to the defense attorneys.

Does Mr. Thompson deserve compensation? A jury thought so, to the tune of $14 million. But five Supreme Court justices disagree, so Thompson gets nothing.

That’s because, according to the majority, it was only a single rogue prosecutor who misbehaved, so it would be wrong to punish the whole district attorney’s office. The dissenting minority argued that in fact there was a pattern of lax training in that office, so the jury award should stand.

But if an innocent man spends 18 years in prison, why should his compensation depend on the nature of the misconduct that sent him there — or even on whether there was any misconduct in the first place?

Look. We’ve pretty much all agreed that we want to have a justice system. Since all justice systems make mistakes, that means we’ve pretty much all agreed that we’re prepared to tolerate a certain number of mistakes. The question, though, is: Who should bear the costs of those mistakes? Should the costs fall entirely on an unlucky few like John Thompson who just happen to have been in the wrong place at the wrong time, or should they be spread more evenly among the populace that is perfectly happy to share in the benefits of the justice system?

I’ve made this argument before about the minimum wage. Let’s put aside all the legitimate controversy about whether the minimum wage is good for low-wage workers and accept that point for the sake of argument. If you believe it’s incumbent on society to transfer resources to those workers, you can do it with a minimum wage, which puts most of the burden on the relatively small segment of society that either owns or patronizes businesses with a lot of minimum wage workers, or you can do it with, say an Earned Income Tax Credit that spreads the burden more equally. If we have a collective obligation to help these workers, doesn’t fairness dictate that we all take a share in meeting that obligation?

Likewise, if we’ve collectively decided (rightly or wrongly) that every shopping mall should have a wheelchair ramp, what moral sense does it make to put the financial burden of those ramps on the owners and patrons of shopping malls, as opposed to financing them out of general revenues?

This seems to me to be exactly the same issue. If we’ve collectively decided we want the benefits of a justice system, doesn’t fairness dictate that we all take a share in meeting its costs? Those costs unavoidably include a certain number of false convictions. We can share those costs by contributing (presumably through the tax system) to a compensation fund. Prosecutorial misconduct has nothing to do with it.


34 Responses to “Justice Denied”

  1. 1 1 Sanjeev Sabhlok


    Fully agree. The state must insure itself against bad decisions and must be forced to pay for injustice. The state has no business to falsely deprive someone of liberty and then wash its hands off this bad decision.

    As I noted in my draft manuscript, The Discovery of Freedom (DOF), such accountability was customary in ancient India. Thus, in the world’s oldest (not widely known in the West) analysis of society, Arthashastra, it is stated: ‘the state was held responsible for any failure to protect the public. If a thief was not apprehended and the stolen property not recovered, the victim was reimbursed from the king’s own resources’. And so I note in DOF, “That is surely the sternest benchmark of accountability, and its surest guarantee.”


  2. 2 2 Mike H

    This all makes good sense to me. I feel sorry for the poor guy…

  3. 3 3 Harold

    WRT criminal justice, I agree that compensation should be paid in the above case. In the UK, there is provision for compensation if a person has spent:

    “a period in custody following a wrongful conviction or charge, where I [the Home Secretary] am satisfied that it has resulted from serious default on the part of a member of a police force or of some other public authority”. This would seem to cover the above case, even if the public officer was acting alone.

    It specificaly does not include cases where:

    “at the trial or an appeal the prosecution was unable to sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought.”

    So should we compensate everyone that is aquitted at trial or on appeal? They have been falsely imprisoned (possibly) whilst awaiting trial, or after conviction waiting for appeal.

    According to Wikipedia, the Spanish constitution guarantees compensation for miscariages of justice, but I don’t know where they draw the line.

    On the comparison with minimum wage, there are parallels, but I don’t think they are completely the same. At least part of the argument for minumum wage (which I don’t think you agree with) is that the employer is getting more benefit than he is paying for. Paying the minimum wage through tax credits simply subsidises the employer.

    Disabled access is better fit, particularly if we are talking of retro-fitting access to existing buildings. It seems reasonable that these costs should be paid from general funds, perhaps in the form of a tax allowance. For new build, these costs will probably be quite low.

  4. 4 4 Pat

    Thanks for posting that. This injustice makes me sick. Do you know if anyone is organizing a fundraiser for Mr. Thompson? I would gladly donate to that cause.

  5. 5 5 Sean

    In my mind, a much more important question is, why are trained legal prosecutors allowed to plead ignorance of the law, and have that excuse upheld by the SCOTUS when ignorance of the law is never an excuse for civilians?

  6. 6 6 TjD

    The answer is Moral Hazard.


  7. 7 7 Dave

    Shouldn’t (for justice and efficiency) the burden be placed on whoever got it wrong? ie a personal financial burden? I suppose you would need to have a personal financial benefit if they get it right (which includes a bonus for letting go the wrongly accused).

    Of course that system is frought with problems but we’ve already decided to accept the best imperfect system.

  8. 8 8 Ken B

    Interesting post, the gravamen of which is that the court got it right: the cost should not fall narrowly on the defendant, and not on the grounds of misconduct either.

    A mechanism for non-fault recompense makes good sense; that is no argument that the court got this wrong.

  9. 9 9 Jonathan Campbell

    I think the reason we are not totally uncomfortable with not compensating wrongly convicted people is that we feel that, in some a priori sense, all people run the risk of falling victim to this bad luck, and we’ve chosen, rather than risk-sharing, a system of just letting the unlucky people suffer.

    Assuming no actual misconduct, should we still compensate? Let’s say the only reasons for wrongful convictions is that DNA testing is wrong 0.01% of the time, just due to the imperfect nature of the science (and assume that we are comfortable with that level of accuracy, as a socieyt). In that case, why is our failure to compensate any different from our failure to compensate victims of natural disasters (who have not bought insurance), or the families of people who die tragic deaths? In both cases, the people were just unlucky, and society does not compensate the merely unlucky.

  10. 10 10 Howard Messing

    While I agree in principal, how much of the $14,000,000 was punitive damages and how much was compensatory? $750K or so per year he was in prison seems excessive. Perhaps the outcome would have been different if the amount awarded had been more realistic and labelled as compensation rather than as punitive. I bet the prosecutor’s office would have let it go if the award had been 2 or 3 million….and clearly labelled as compensation.

  11. 11 11 Daniel Hewitt

    I had to read this a few times but I think I get it now. Collective system, collective benefits should also mean collective costs. Agreed. Also the individual prosecutor works for the district attorney’s office, who in turn works for the state. The state owes John Thompson restitution, and what they do within their own organziation after that is their own problem.

    The example given by Steve is a good argument for a polycentric law system, by the way.

  12. 12 12 Ken B

    Howard Messing makes a good point. Punitive damages should depend on misconduct and should fall narrowly. Compensation for error though should be built in and the cost should be spread over all the beneficiaries of the system.

  13. 13 13 Harold

    ” ie a personal financial burden?” Trouble is the individual does not have $14M

    There are 2 issues above: the compensation of victims of miscarriages, and the similarity to minumum wage and disability access.

    I think the system at present is that there is no compensation if there is no fault. If you were convicted before DNA evidence was available, and then DNA evidence clears you, you will not get compensation because the prosecution could not have known; there is no fault. If however, the prosecution does not send the DNA to the defence when it becomes available, then there is fault and hence compensation. Example here: http://newscastmedia.com/blog/2010/10/20/man-wins-18-5-million-in-compensation-after-false-imprisonment/

    This means that the compensation is not for being wrongfully imprisoned, but for having your constitutional rights violated by malice or incompetence of the authorities. (Please correct me here, this is just the way it seems to me). It seems in the above case the supreme court thought that the malice was by an individual rather than “the authorities”, so no compensation. Steve seems to be suggesting a change, correctly in my view. But where do we draw the line? Well, clearly in the above case, there was malice, so there should be compensation, even if it was only by one individual. But what if there is no malice, and no incompetence? Should we compensate in these cases? I think many would agree that someone locked up for 20 years when new evidence comes to light should be compensated. What is the fundamental principle here? That everyone who, on the best evidence, has been wrongly damaged by the prosecutors? Then every aquittal should be accompanied by compensation. I think many people would recoil in horror at this idea. So perhaps every convicted person subsequently exonerated? Then every succesful appeal is compensated. Or is it only people exonerated by new evidence? Only those having served over so many years in prison? I am not sure.

    Interestingly, for compesatiopn in the UK there is a deduction made for “board and lodging”, which some find tinged with irony.

  14. 14 14 Michael

    I believe John Thompson should receive compensation. I am a bit taken aback that 5 Supreme Court justices disagreed, but presumably they had the law (rather than justice) on their side.

    Assuming that is the case, Congress and the President should come up with a way to compensate those unjustly convicted of crimes. I would no more want a person to be unjustly locked up for years for a crime he or she didn’t commit than I would want them to be executed for a crime they didn’t commit.

    As a related question, what level of proof should there be to decide whether or not someone deserves damages? Should there be an “Innocent by a preponderance of the evidence” as the flip side to “Guilty beyond a reasonable doubt,” where a jury could award compensation?

  15. 15 15 Roger Schlafly

    We don’t know that Thompson is not a murderer. We only know that one jury said that he was guilty, and one said “not guilty”.

  16. 16 16 Contemplationist

    We don’t know that Roger Schlafly is not a child rapist. I say he is, while his family/friends disagree. Hence, he may be imprisoned at will by the State.

  17. 17 17 Rowan

    Funny, this is exactly how I feel about health care.

  18. 18 18 Paul G

    I like Jonathan Campbell’s analogy to natural disasters. The government does not respond to financial incentives much more than the weather does, so there is no compelling reason that the government should always bear the costs of its mistakes. I agree that we should all contribute, but would it not be sufficient for us to do that by purchasing private insurance against wrongful imprisonment?

  19. 19 19 Ken B

    @Rowan: How often have you become sick due to either prosecutorial malfeasance or error? Just curious.

  20. 20 20 Rowan

    @Ken B: I was addressing the larger point that if a society has agreed that it will collectively benefit from something (the justice system, accessibility to buildings and transit, minimum wage), then it should collectively foot the bill.

  21. 21 21 Seth

    I think you use ‘justice system’ where you should use ‘people who carry out the justice system’. Systems don’t make mistakes. People make mistakes.

    I wonder if private solutions to this matter could work better. I do think the people who made the mistake should bear some cost. Maybe not the full cost, otherwise folks may not want to participate in the justice system. But, their job or standing should be on the line.

    Second, as for the full cost, I wonder if a private solution could be more effective. Let’s put up a website with his full story and take up a collection.

  22. 22 22 nobody.really


    There is no reason why, in a society which has reached the general level of wealth ours has attained, the first kind of security should not be guaranteed to all without endangering general freedom. There are difficult questions about the precise standard which should thus be assured …. but there can be no doubt that some minimum … sufficient to preserve health and the capacity to work, can be assured to everybody….

    Nor is there any reason why the state should not assist the individuals in providing for these common hazards of life against which, because of their uncertainty, few individuals can make adequate provision. Where, as in the case of sickness and accident, neither the desire to avoid such calamities nor the efforts to overcome their consequences are as a rule weakened by the provision of assistance — where, in short, we deal with genuinely insurable risks — the case for the state’s helping to organize a comprehensive system of social insurance is very strong…. [T]here is no incompatibility in principle between the state’s providing greater security in this way and the preservation of individual freedom. To the same category belongs also the increase of security through the state’s rendering assistance to the victims of such “acts of God” as earthquakes and floods. Wherever communal action can mitigate disasters against which the individual can neither attempt to guard himself nor make provision for the consequences, such communal action should undoubtedly be taken.

    Friedrich Hayek, The Road to Serfdom, Chap. 9, “Security and Freedom”

  23. 23 23 nobody.really

    I also favor socializing risk where the moral hazards are low. I share the view that we should compensate people who suffer from a miscarriage of justice. Our system of justice is imperfect. That is, in order to secure benefits for society at large, we have adopted a system that will impose disproportionate costs on individuals. Systemically, we know that some individuals will be burdened with having to serve on a jury for an afternoon. Systemically, we know that some individuals will be burdened with having to serve a bad sentence for 18 years. Guess which individuals we compensate?

    I also share Landsburg’s view of the minimum wage. I prefer leaving the labor market alone and working through other transfer payment mechanism. Alas, those other mechanisms get stigmatized – often by the same people who complain about the minimum wage. When it comes to a political fight, the minimum wage is easier to defend than simple transfer payments – even if it proves to be more pernicious to economic efficiency.

    I similarly extend this view with respect to environmental regulation. If society wants some kind of environment preserved, it – and not the landowners – should bear the cost. If we’re going to try to incentivize reduction of green-house gases, we should not merely reward people who plant trees, we should reward people who HAVE trees, whether or not they were planning to chop them down. After all, the good done by a tree does not depend upon the intent of the tree’s owner. Of course, such a policy would make cap-and-trade programs much more expensive. But it would cause the programs to sent appropriate price signals. It would illustrate the extent to which we are NOT autonomic entities, but are really tied together in complex webs of interdependence. (And it would arguably reduce the extent of that interdependence by reducing it to cash!)

    Conceptually the same argument applies to the Americans With Disabilities Act. If society wants people in wheelchairs to have ramps, let society pay for them. Not merely pay to build them, but pay landowners that have already built them. Alas, judging whether a given ramp will actually provide a benefit to anyone is harder that judging whether a given tree will absorb carbon. I sense that the ramp situation is sui generous, which makes it hard to create a systematic means to compensate people.

    Here’s one more application: It’s my understanding that public utilities typically are not liable for damages that result when utility service fails. It’s argued that the cost to a utility to insure against such losses would render utility service much more expensive. In other words, we prefer to place the risk of harm resulting from the failure of utility service on blameless customers rather than spreading that risk through society. Weird.

  24. 24 24 Richard

    Correct me if I’m wrong, but isn’t the district attorney’s office funded in part by taxpayers? If so, and the district attorney had to fork over the $14 million cash, then the taxpayer did in a way pay for Mr. Thompson’s just compensation.

  25. 25 25 vic

    ‘If we’ve collectively decided we want the benefits of a justice system, doesn’t fairness dictate that we all take a share in meeting its costs?’

    Well, no- the fact that we all want something does not mean that it would be fair for all of us to share in meeting that cost. I want all Apple Mac users to have a good usage experience- though I don’t own a Mac. I want all Patagonians to have satisfactory orgasms- preferably not in my vicinity. Clearly, I oughtn’t to bear any share of the cost of ensuring either.
    A mechanism which incentivizes Apple Mac (which is in the best position to get Mac users a good experience at lowest cost)is one I would say is ‘fair’ for all sorts of reasons. I need hardly add, by backward induction, the Patagonian orgasm, too, is the responsibility of the Apple Corp.
    I must admit, this particular case is particularly shocking but ‘hard cases make bad law’.
    Can one get insurance for wrongful conviction? Perhaps, the State, holding the monopoly of that particular wrong, should implicitly provide it- with caps and part-pays and so on if that’s the incentive compatible solution.

  26. 26 26 Steve Landsburg

    Richard: For the taxpayer to fork over $14 million through the funding of the district attorney’s office is exactly what I’m advocating.

  27. 27 27 Steve Landsburg

    Rowan: I think it is more than reasonable to feel exactly this way about health care, especially regarding catastrophic illnesses. One has to weigh these considerations against the concern that one will create very bad incentives, though.

  28. 28 28 Steve Landsburg

    Howard Messing: $750K a year sounds to me like the low end of adequate compensation for time in prison. I am sure I would not be willing to do a year in prison for that price.

  29. 29 29 vic

    $750K a year sounds to me like the low end of adequate compensation for time in prison. I am sure I would not be willing to do a year in prison for that price.
    What if you belonged to a community with higher actuarial risk of mortality outside jail?
    In any case, the question arises as to whether Economic notions of fairness can really get a handle on the coercive powers of the state and the notion that it has rights superior to any one of its subjects.
    Indeed, it may be that the primitive hard-wired notion of fairness we have is stochastic.
    I don’t see how statements like ‘society has collectively agreed’ can be operationalized such that a a duty to pay for something can arise except through either a contract or legislation or common law or something like that- because agreement, to be more than a vague statement of what is desirable, specifies these things in advance.
    It appears, the Supreme Court does not think this guy should get 18 million. Had the framers of the Constitution believed otherwise, it’s a pity they didn’t say so plainly.

  30. 30 30 awp

    “That’s because, according to the majority, it was only a single rogue prosecutor who misbehaved, so it would be wrong to punish the whole district attorney’s office.”

    Aren’t corporate/collective entities normally responsible for the misbehavior of their chosen representatives operating on their behalf? Isn’t this a good thing? Seems like it would incentivize voters to make sure their prosecutors office was seeking “justice” as opposed to convictions.

  31. 31 31 Harold

    “Vacancy: A superb opportunity has arisen for 1 year, ideal for the currently unemployed and those with no skills, aptitude or experience, offering outstanding remuneration of $750,000 a year. Work involves being away from family for 1 year, living “on site” all the time, performing light manufacturing duties such as sewing mailbags or making number plates. The nature of the employment requires strict adeherence to the working timetable, such as mealtimes, sleeping hours, time off, access to television etc. The seclusion means that contact with family and friends will be strictly limited to weekly visits.”

    I think there would be quite a few applicants, but probably not from the professorial sector.

  32. 32 32 Harold

    In London recently there has been much talk of reducing housing benefit, with prediction that poor people will have to move out of London. This may entail cosiderable personal distress during the upheaval, and result in less socially mixed neighborhoods. But there is another outcry: “Where will all the cleaners for the Banks and offices in the City come from?”. Minimum wage is simply not enough to pay for people to live in London unless their housing is subsidised by the tax-payer. Without housing benefit, the banks would have to pay their cleaners much more. The extra profits made by under-paying the cleaners goes straight to huge bonuses for traders. The tax-payer has been subsidising the banks by effectively paying some of their cleaners wages.

    If we were to remove minimum wage and top up the incomes with tax credits or direct payments, are we not just further subsidising the employers?

    Maybe you would agree, and conclude that we should not top up the incomes, and neither should we dictate the minimum wage. In a perfect market, this would remove both problems of high cost housing and under payment. However, if we had to have one or the other, you seem to prefer direct payments to a minimum wage.

    A side note as to how we got into this situation. Up to the 1980′s, local councils built council houses and rented them out. The rents were modest, and as such subsidised by tax-payers. People with no income had their rents paid. The houses were maintained by the council employees. In the 1980′s, this system was stopped, and many council houses sold to their tennents at low prices. This was partly ideological, since it was assumed that house-owners would be more likely to vote conservative. The councils were forbidded to use the proceeds to build more social housing. People on low incomes were then expected to rent houses from private landlords, and the councils would pay the market rent. This sounds fine, but where housing benefit claimants constitute a large part of the market, then this just forces up rents. A lowering of housing benefit should therefore result in a lowering of rents. However, the high rent produced a surge in the buy-to-let market, and forced up house prices. This now means that the high rent is justified by the house price. So we have been locked into a high property price, high rent situation, where the taxpayer is forced to subsidise low wage paying business if we do not want a forced exodus of the low-waged from the capital, or a forced increase in minimum wage.

  33. 33 33 Mark

    I once heard that a very prominent academic jurist, who shall remain nameless since I never heard him say it, that the right people are in prison. They may not be in guilty of the crimes they were alleged to have committed, but their proximity (in various ways) to the crime means that they are probably guilty of having committed other crimes. If true, I have a hard time with this.

    We want to compensate the innocent person if only to put pressure on taxpaying voters to elect people with morals and scruples, and to monitor their behavior afterwards. Who knows, the next innocent victim may be me . . . or you.

  34. 34 34 Doug

    Society as a whole should bear the costs of compensation for random false convictions, where honest prosecutors made a genuine mistake. Misconduct is a tougher issue, because it’s harder to convince society that we should all foot the bill for the prosecutor’s intentional dishonesty, rather than “sticking it” to the offending prosecutor and letting him foot the bill. Regardless, misconduct needs a strong negative feedback mechanism to prevent it from recurring. I’m not suggesting the form or nature of the feedback mechanism. I agree that the issue of prosecutorial misconduct should be decoupled from compensation and handled as a separate matter, for the sake of simplicity and consistency. But I want to know how the misconduct was directly addressed? Does anybody know what corrective and preventative actions were taken to assure that this type of problem is unlikely to originate from this office anymore? Have they performed a “where else” search to properly conclude this was isolated to one rogue prosecutor? Did the rogue prosecutor lose his job? Was he fined? Is he in jail? I suspect that this needs to be more robustly addressed by our legal system.

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