In 1985, John Thompson was convicted of murder. In later years, however, defense investigators discovered that the prosecutor, New Orleans Parrish Assistant District Attorney Gerry Deegan, had intentionally withheld evidence. This was a violation of Thompson’s rights under Brady v. Maryland, and Thompson’s conviction was vacated. He was tried for murder again, and after eighteen years in prison—fourteen of them on death row—he was acquitted and released.
As you’d expect, Thompson then tried to sue the people who had violated his rights. That turned out to be trickier than you might think, as Norm Pattis explains:
Given the vagaries of the law of prosecutorial immunity, the man wrongly sent to death row could not sue the prosecutor who withheld the evidence, Gerry Deagan. He was performing his duty as a prosecutor: under the court’s functional test for determining when to grant prosecutors a pass, the law blew Deagan the tyrant’s kiss.
That the law forgives prosecutors for their honest mistakes is perhaps understandable, but I don’t have a clue why it forgives them for their dishonest mistakes. In any case, it’s a really great deal for prosecutors.
Thompson instead chose to sue New Orleans Parrish District Attorney’s Office. There’s a trick to this, however, as Jessica Fitts explains at SCOTUSblog:
in City of Canton v. Harris, the Court made clear that a governmental entity can be held liable under Section 1983 for its failure to train employees only if the plaintiff can prove “deliberate indifference” to an obvious risk that constitutional violations will directly result from the policy or custom. In so holding, the Court discussed two hypothetical scenarios that might meet this standard: (1) cases in which the policymaker has been alerted to a training problem by a series of prior violations; and (2) cases involving single incidents, in which the need for training is so glaringly obvious that constitutional violations are inevitable.
Since this was more-or-less a single case, Thompson’s lawyers had to prove that his situation met the “glaringly obvious” requirement for a single incident. Impressively, they succeeded, and Thompson was awarded $14 million.
Unfortunately, earlier this week, the U.S. Supreme Court decided Connick v. Thompson and took it all away. Basically, as far as I can tell, the Supremes bought the DA’s argument that prosecutors are highly-trained professionals who should have known, and did know, that not disclosing Brady materials was wrong. That Deegan chose to break the rules doesn’t mean the DA’s Office failed to train him or other prosecutors. It just means that Deegan was a bad guy.
Some of the lawyers around here are explaining why they think the Supreme Court is wrong (Norm, as mentioned, Scott Greenfield, Rick Horowitz), with various level of detail. With all due respect, however, I disagree. I think that on the issue directly before them, the Supreme Court got it right. I’m not a lawyer, so make of this what you will, but based on the test in Canton and the facts as I understand them, the problem did not arise due to the DA’s office’s deliberate indifference to a training problem.
That’s not to say I don’t think Thompson deserves a big check from the government for what they did to him. Rather, as I see it, the problem is that Thompson shouldn’t have had to prove deliberate indifference or any other training problem. All he should have to prove to make his claim is that he was imprisoned in error, that he was imprisoned when the law says he shouldn’t have been imprisoned. Why does the reason for the justice system’s error matter?
In slightly more legal terms, I think a claim for wrongful imprisonment imprisonment should be a matter of strict liability. In ordinary civil litigation, the strict liability standard usually applies to situation that are inherently dangerous, such as hauling explosive chemicals on the public roads. (If the escaped Bronx Zoo cobra injuries someone, my guess is that the zoo will be strictly liable for keeping dangerous animals.) It seems to me that the justice system’s practice of grabbing people off the street and locking them in cages is inherently dangerous. When they hurt innocent people, for any reason, they should pay the price.
The rationale for applying strict liability is pretty simple. Our criminal justice system exists to provide a public good, law and order, and all members of the general public benefit from it. Of course, our criminal justice system also has costs. There’s the cost of cops patrolling the streets and the cost of detectives solving crimes. There’s the cost of the prosecutors and investigators. There’s the cost of the courthouse and the judge and the clerks and the bailiffs. Then there’s the cost of all the holding cells and jails and prisons, including all the prison guards. These costs are all paid for using funds collected as taxes from the same general public that receives the benefit.
There’s one more cost of our criminal justice system: Wrongful imprisonment. No matter how good we make our criminal justice system, it’s still going to make mistakes. Even at it’s very best, It will, from time to time, put the wrong people in prison. This is an inevitable consequence of an imperfect system for deciding who goes to prison. And wrongful imprisonment is just as real a cost of criminal justice as running a police force or operating a court system.
In which case, shouldn’t it be paid for by the general public, just like any other cost? That is, when we wrongfully send a guy like Thompson to prison, shouldn’t we pay the price to compensate him for all that he lost by being in prison? Note that the why of it just doesn’t matter, because it doesn’t change the loss he suffered at our hands. (Except if he actively tried to get imprisoned, such as to protect the actual culprit.) Instead, under the current system, the entire cost of wrongly sending a guy like Thompson to prison is going to be paid by Thompson himself. That doesn’t seem very fair, does it?
I’m not sure how to calculate the extent of the damages that New Orleans Parrish owes Thompson. Maybe we let the the lawyers sort it out in a lawsuit, or maybe to avoid a long and drawn-out process, the state should specify a reasonable level of liquidated damages.
(What’s reasonable? Well, my engineering brain appreciates consistency, and since the Department of Labor has decreed that a person’s time is worth a minimum of $7.25/hour, with time-and-a-half for overtime, we can calculate that for each 168-hour week he’s in prison, he’s due $1682.64 per week, or about $87,000 per year. Thus, on the day he was released, the people of New Orleans Parrish owed John Thompson at least $1.5 million. Minimum.)
Again, this is just a cost of operating the justice system, and everyone who benefits from the operation of the justice system should share in its costs, including paying off people who are wrongfully imprisoned. If the people paying the bills don’t like the high costs, perhaps they need to make sure they have better prosecutors. In any case, the prosecutor’s misbehavior is not Thompson’s problem.
(Hat tip: I used this post by Steve Landsburg to refine my argument a bit.)