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Home > CKLAWREVIEW > Vol. 85 (2010) > Iss. 1 (2010)

 

Abstract

After the DNA-inspired wave of exonerations of recent years, there has been widespread support for expanding the damages remedies available to those who have been wrongfully accused or convicted. In this article, Professor Rosenthal argues that the case for providing such compensation is deeply problematic, whether advanced in terms of no-fault or fault-based liability. Although a regime of strict liability is sometimes thought justifiable as a means of creating an economic incentive to scale back such liability-producing conduct to optimal levels, this rationale has little application to the criminal justice system. Instead, a regime of strict liability would operate as a kind of perverse wealth transfer—from those most in need of government assistance to the exonerated—without reducing the risk of error in the criminal process. Given the nature of this wealth transfer, the case for compensation as a means of providing social insurance against wrongful convictions is equally flawed. As for a regime of fault-based liability, both tort law and constitutional law have long wrestled with the problem of wrongful convictions, and have erected many doctrinal obstacles to a regime of fault-based liability. These doctrinal obstacles reflect considerable skepticism about the wisdom of damages for wrongful convictions—a skepticism that Professor Rosenthal argues is warranted. Even if the law were to remove all doctrinal objections to fault-based liability for wrongful prosecutions and convictions, such a regime could not be confidently expected to induce police and prosecutors to take all cost-justified precautions to reduce the risk of wrongful prosecution or conviction. Instead, our current regime of political accountability for wrongful convictions is likely to be about the best that we can expect for identifying and reducing the risk of wrongful prosecutions and convictions.

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