Michigan Law Review First Impressions

Article Title

Why and How to Compensate Exonerees

Authors

Abstract

How can we bring greater uniformity to exoneree compensation in a principled and just way? This paper argues that answering this question becomes easier once we identify the principles of justice that best justify and explain compensation statutes. In particular, commentators have assumed incorrectly that the goal of compensating exonerees should be understood primarily in terms of corrective justice, which posits a duty to undo or repair wrongfully inflicted harms. This paper argues, by contrast, that restitutionary justice, which forces parties to relinquish unjust gains, better justifies and explains compensation statutes. The unjust gains at issue are fair wages withheld from those performing crime-deterrence services. That is, this paper claims that prisoners, like law enforcement officials, perform crime deterrence services simply by virtue of their incarceration. The state might fairly withhold compensation from the guilty for their crime-deterrence role, on the grounds that we should avoid rewarding individuals for their wrongdoings. But this rationale for withholding payment does not apply to innocent prisoners; innocent prisoners are in effect pressed into service as instruments of criminal deterrence without being compensated for this task. Fair compensation cannot be justly withheld from the innocent, any more than the state may justly withhold compensation from conscripts unwillingly pressed into military service.