This Article poses a new theory of compensation for exonerated prisoners, one based on a theory of relational property as applied to wrongful convictions. This Article proceeds as follows: First, the Author establishes a nuanced definition of "wrongful conviction," differentiating between substantive and procedural wrongfulness, defining "conviction," discussing the role of causation in the definition, and discussing the incidence of such convictions as defined. Next, the Author describes the current legal doctrine for wrongful conviction compensation through the example of two wrongfully convicted prisoners who spent thirteen years on death row in Louisiana. The Author briefly considers the normative foundations for providing compensation to those wrongfully convicted, before examining in more detail the flawed "thing-thinking" conception of property that serves, in part, to limit compensation to such former inmates.
The Author then defines an alternative to the limiting "thingthinking" conception of property-"liberty-property." Libertyproperty exists at the boundary between liberty and property, and enables us to conceive of deprivations of liberty as takings of property, thereby covered by the Takings Clause of the Fifth Amendment. Such a conception provides a new framework for the evaluation of wrongful conviction compensation claims. Further, such a framework shifts the remedial consideration from deterring the State in future actions that may lead to a wrongful conviction, to compensating the victim of wrongful convictions. Because it is impossible to rid our criminal justice system of the risk of wrongful convictions, the liberty-property compensation model provides a more powerful, more just manner of compensating those wrongfully convicted.
Wrongful Convictions as Rightful Takings: Protecting "Liberty-Property",
59 Hastings L.J. 515
Available at: https://repository.uchastings.edu/hastings_law_journal/vol59/iss3/2