Scott Greenfield, contra Radley Balko, believes the idea would prove “problematic, if not disastrous,” in real life, especially if enacted in the form of two-way fee-shifting (as distinct from a one-way fee payable only to defendants). It is worth noting that although legal systems around the world predominantly embrace loser-pays principles in civil litigation between private parties, they more or less uniformly decline to carry a similar principle over to criminal prosecution.
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I’d go much farther. Mere accusation of a serious crime by a prosecutor is enough to routinely lose the accused person his home, job, reputation, and any chance of a future home or job, and often the accused doesn’t get any of those things back even when acquitted. I believe the state ought to have to relieve the innocent person of all those losses; otherwise his life is ruined without cause. Besides, this rule may be the only thing that can curb prosecutors’ zeal to grossly overcharge people.
The advantage of loser-pays is that it would discourage frivolous cases. While I think most people would agree that America is overly litigious on the civil side, are frivolous cases a real problem on the criminal side? I would think the prosecutors would only bring a strong case to court, especially since the hurdle is greater (unanimous jury).
Losses sustained by the accused is a huge problem, but I think the solution is to hold prosecutors accountable and not give them qualified immunity. They should have limitations that preclude them from going on fishing expeditions in order to keep their numbers up.
Two cases come to mind – the Duke Lacrosse Hoax and the Ted Stevens prosecution.
In the former, three Duke student lacrosse players were prosecuted for rape, sexual assault and kidnapping based on the false claims of the “victim,” Crystal Mangum. The case was heavily politicized by the corrupt, incompetent prosecutor, Mike Nifong. All charges were ultimately dropped, and Nifong was fired, disbarred and (briefly) went to jail. The defendants were guilty of nothing and are pursuing their remedy through the courts, but the outcome at this time is uncertain.
In the latter case, US Senator Ted Stevens (R, Alaska), was tried and convicted on seven counts of failing to report gifts, a felony. Stevens stridently maintained his innocence but, largely because of this prosecution, narrowly lost his reelection bid. Subsequent investigations revealed egregious misconduct by the prosecutors (withholding exculpatory evidence, suborning perjury, etc.). The judge vacated the convictions and held the prosecutors in contempt, and one of them committed suicide.
Granted, these are examples of extreme prosecutorial misconduct, not just innocent defendants. But why shouldn’t they have a standard remedy to compensate them for the great harm resulting from these false accusations? Even in the absence of such misconduct, innocent defendants often spend huge amounts of money. Why shouldn’t they be compensated, if only for their defense costs? Anyway, the number of criminal defendants who are ultimately found totally innocent (and who don’t just plea bargain down the charges) is rather small.
“I would think the prosecutors would only bring a strong case to court, especially since the hurdle is greater (unanimous jury).”
Prosecutors only bring weak cases to court. Strong cases plead out. And in that there is a great asymmetry, because the underlying threat from the prosecutor is to take the deal, or be overwhelmed with a hundred charges and an indictment the size of a telephone book.
I disagree with a few things here.
First, it is silly to say prosecutors only bring weak cases to trial. People dead-to-rights guilty go to trial all of the time.
Second, there is a huge “drive a mack truck through it” difference between being found not guilty and being found innocent. Most people who are acquitted are guilty. This is the exact intent of the system.
Either way you go on this, there is grave injustice. It is unjust to have to pay for a defense when you are innocent. If is also unjust for us to foot the bill for criminals who beat the rap.
Interesting byproduct of the system: lawyers pushing their clients to try their cases so they can get paid if they win. Contingency fee criminal lawyers. “Johnny, I know they are offering you a suspended sentence on your murder rap. Still, I think we should roll the dice.”
Black Death,
Small corrections: the three lacrosse students were charged but never prosecuted, and the charges weren’t just dropped they were exonerated.
I believe the three charged have already made their deal with Duke, but others tarnished by Nifong’s net are pursuing Duke and Durham, et al; but their case is not going well.
The weird thing to me is that while the state does not pay defense costs of those acquitted, it does pay for a long round os appeals and motions for post conviction relief and/or habeus corpus for those convicted, including those convicted on plea.
I agree with John David Galt. Part of the price of our justice system is that innocent people will be charged with crimes, forced to defend themselves, lose their jobs, have their reputations ruined, and so on. I see no reason this cost should be borne by the victims rather than shared by society as part of the cost of having a justice system. If someone can find a way to compensate only the innocent, so be it, but if the only way to compensate the innocent is to also compensate those clever enough to get away with it, so be it.
I agree with other posters that an acquittal is not the same as actual innocence. “Reasonable doubt” might mean only 90% certainty of guilt, or that crucial evidence was concealed from the jury on technical grounds, or jury nullification. Some nullification is praiseworthy (fugitive slave laws, marijuana laws), some is monstrous (KKK killers in the Jim Crow era), and some is merely perverse, eg criminals on juries looking out for their own.
Congress should invoke its authority under the 14th Amendment, however, to give defendants a civil right to prove their innocence, and to sue both DA offices and individual prosecutors for withholding evidence of actual innocence.
Ron Miller: That would be the first 100% contingent fee arrangement of which I’ve heard.
The whole system could be easily fixed with by making one item an extremely serious offense…PERJURY. Back in the day a prosecutor would get all over a police officer for bringing him a bogus case. When you were arrested there was evidence and the officer informed you of the charge you were being arrested for. Today, they will arrest you for any attitude and not tell you anything. When you are booked in the prosecutor will act in collusion with them and say “let me open this huge book of ridiculous laws and see what we can charge them with”. Then these officers get on the stand and proceed to lie like they are taught in the training schools. And I don’t mean some of them, I mean ALL of them. Start handing out ARCHAIC sentences for perjury on both sides, including the prosecutor and there would be no need for the state to pay the legal defense costs of acquitted criminal defendants because there would hardly be any.
Mark I appreciate your point but it would hardly be a panacea and it probably wouldn’t make a real dent. Certainly, many people are convicted and acquitted wrongfully without anyone committing perjury.