Comment by ncallaway | Hacker News Reader

Comment by ncallaway | Hacker News Reader

The state needs to financially make whole persons who are wrongly arrested. There needs to be a standard set of damages that get paid out to someone who is in jail wrongfully.

I would propose that the state owes you double the highest paid salary that you have earned in your career for the duration of your stay in prison. This is to both make a person whole for their missed earnings, and to repair the damages that having an arrest on your record does to your future earning potential. Further, there should be a minimum cap of $5,000 / month, and a maximum cap of $1M / year. Finally, I would propose that this value goes up by 10% each year to account for potential career growth over that time.

Not only does this attempt to make someone whole for the time that they lost, but it puts a real financial burden on the state for making these kinds of errors. Right now, the state faces almost no downsides other than the cost of housing someone in a prison.

Edit: as noted in a comment below "Wrongfully arrested" may be more appropriate read as "Wrongfully jailed". This program or policy would be targeted at affecting prosecutorial misconduct and not police misconduct. While police misconduct is still a massive issue I think there are different policies that should be used to address police misconduct.

Following on, it would be far more effective to just radically reduce the obscene rates of arrest and incarceration in this country, make sure bail is fair so unaffordable bail isn't used to force guilty pleas, make sure we have sufficient public defenders (easy to do if we could lighten their case load by 80% or so), and in general radically reduce the chances of someone getting arrested/charged in the first place.

Another interesting attack front would be modern riot control techiques like "kettling". Kettling is the practice of herding protesters with chemicals and force into a road blocked at both ends by police walls, ordering everyone to disperse, then arresting everyone and charging them with failure to disperse. Usually, the charges are simply dropped just before habeus corpus issues set in - after people sit for three days in jail without even a hearing. Kettling is an affront to the ideals of the Constitution and it'd be wonderful to see it either legally abolished, or made unaffordable with successful lawsuits.

I absolutely agree with the reforms that you've proposed. I think these are another important reform that can bend the curve on prosecutorial misconduct.

Prosecutorial misconduct and irresponsibility is a big reason why we have obscene rates of incarceration. I totally agree that we should radically reduce the rates of incarceration, but how do you do that? Do you tell prosecutors to incarcerate fewer people? Do you give each one a maximum quota? Do you apply a penalty for each case that they get wrong?

Certainly, this particular case is prosecutorial misconduct. There was probably probable cause for the initial arrest, but not to keep it going. Sometimes I wonder how much of this is prosecutors not wanting to admit they were wrong and they did an awful thing to an innocent person?

This one has a simple answer: reduce or eliminate Prosecutorial Immunity

https://www.google.ca/search?q=prosecutorial+immunity

I see you being downvoted, but I'm not sure why.

Anyway, in the UK, YOU are invoiced for board and lodging upon release[1] [2]. The UK Home Office use it as a method of effectively diminishing any compensation payment to negligible sums (but oddly, only for male prisoners - female ones are not invoiced, apparently). 27 years wrongly imprisoned gets you total of around 46 pounds (around $80). [3]

[1] http://www.dailymail.co.uk/news/article-458006/Man-wrongly-j... [2] http://www.rense.com/general50/25yt.htm [3] http://www.theguardian.com/uk/2009/mar/22/sean-hodgson-compe...

Interesting. In the US it really depends on which state you get arrested in.

Several states give you $50k / year, but 24 states give you 0: http://www.cnn.com/interactive/2012/03/us/table.wrongful.con...

>"a real financial burden on the state for making these kinds of errors"

I agree with everything in your post except this; the state does not care whether it is burdened or not, it simply taxes the citizenry to cover these expenses. At least a portion of this compensation should come from the responsible parties if this type of problem is to be discouraged. Imagine that you are a prosecutor or police officer set on obtaining a conviction for moral, corruption, or career reasons; will the possibility of future costs to the state give you any pause, or make you reconsider your actions?

These numbers need to be tied directly to the prosecutor who put them in jail. I am not willing to go so far as to say the prosecutor needs to pay for the cost, but it should absolutely be a part of their record. I think it would be acceptable to come out of the prosecuting office's budget. They are a part of a prosecutors performance evaluation.

So, when a prosecutor says: "I put away 300 people, with a 97% conviction rate" their supervisor can say: "Yes, but you also cost this office $250,000 with your 2 wrongful convictions. We're passing on you and giving the promotion to Janice who put away 260 people on a 95% conviction rate, but only cost the office $10,000."

Not if the money comes from the department in which they work. If every fuck up by their co workers could potentially ruin their ability to prosecute anyone at all then they'd probably try a bit harder not to fuck up so much.

It's complicated, though. How do you define "wrongfully arrested"? "Not guilty" is not the same as "innocent". "Charges dropped" is not the same as "innocent". This is not to say that all those arrested are guilty - far from it! But you would need a separate legal mechanism to distinguish actual wrongful arrests - and sadly, that mechanism would almost certainly be as badly biased by race and class as the existing courts.

That's fair. "Wrongfully jailed" would probably be a better terminology. I wouldn't apply this to someone who sat overnight in the drunk-tank, but I would apply it to someone who spent a month or more in jail awaiting a trial.

"Not Guilty" — in a society with a presumption of innocence — is the same as innocent. If we find you Not Guilty, and you spent 3 months in jail, the State should repair you for that harm.

"Charges Dropped" after a brief-arrest is not something I would punish. "Charges Dropped" after someone sat in jail for 2 months awaiting a trial? Pay up.

In both of the cases you mention (someone was found guilty or charges were dropped) it seems pretty obvious that the arrest was wrongful, and a jailed person should be compensated. Can you come up with non-trivial example?

Guilty verdicts are difficult in American law. "Beyond a reasonable doubt" is hard to achieve, even when the accused is guilty. "Probable cause" is all that is needed for arrest, a much lower standard.

If there's a probable cause for someone to be arrested, but they're not convicted after all, they _are_ innocent. I still don't understand what's tricky about that.

I don't know the right answer, but this sets up some perverse incentives - police might be urged to be "more careful" around rich people than poor people, since wrongly arresting rich people has more penalty.

Conversely if you set a fixed dollar amount, then you incentivize poorer people to provoke a false arrest in hopes of getting a payday (similar to common insurance scams seen today.)

Don't make it entirely on the State. The individuals who are acting negligently on behalf of the State need to have an incentive to do the right thing as well.

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