Compensation for Wrongful Conviction and Incarceration in the United States

Abstract

Wrongfully convicted and incarcerated individuals in the United States may seek compensation by various means. Traditional common-law tort and civil rights actions are sometimes used as vehicles for recovery, but claimants often recover on these claims in only egregious cases due to various immunity defenses and claimants’ inability to establish elements such as a lack of probable cause to arrest or prosecute. Some claimants have found success through moral bills of obligation, but this, too, is quite limited because exonerees often lack the political power necessary to push through such legislation. Claimants are most likely to find compensation for wrongful conviction and incarceration through jurisdictions’ wrongful conviction compensation statutes. Not all jurisdictions have passed such statutes, however, and the existing statutes vary considerably in terms of their requirements for and amounts of compensation. Although these statutes are generally exonerees’ best hopes for recovery, they are often quite unsatisfactory in the compensation that they actually provide. The minimal compensation is at least partially due to jurisdictions’ concerns about the high price tag of adequately compensating wrongfully convicted and incarcerated persons, but there are steps jurisdictions can take to limit the number of wrongful convictions and also mitigate the damages flowing from these wrongs. Further, putting a public face on the problem of wrongful conviction could perhaps ignite greater reform.

Keywords: wrongful conviction, compensation, statutory compensation, comparative compensation, wrongful incarceration, bill of moral obligation, civil rights, torts