Problems of Legal Delay

and legal error

A legal system takes time to produce its verdicts, probably more time the more careful it is. That raises, in many different contexts, the problem of legal delay. For example:

Someone is charged with a crime, arrested, spends a month in jail awaiting trial, is acquitted. Is he entitled to compensation for his time in jail? If instead of spending a month in jail he posts bond, obtained from a bond agent, is he entitled to be reimbursed for the cost?

Someone is convicted of a capital crime. After his execution evidence turns up showing that he was innocent. The state cannot give him back his life but his execution also imposed costs on his wife and children who are still around. Does the state owe them compensation?

Trump used legislation designed to let the President regulate trade in an emergency, when there might not be time for the legislature to act, to transfer the general authority to set tariffs from Congress, which under the Constitution is in charge of regulation of trade, to himself. There is currently litigation over whether he was entitled to do that. Suppose he loses the case — not likely but possible. One result would be that the tariffs are cancelled. Are importers entitled to a refund of the billions of dollars already collected? What about the people who bought from the importers at prices they raised due to the tariff? The people who bought from them?

A similar issue arises in the case of a conflict between a state legislature and the federal court system. The Supreme Court has ruled that US citizens have a right to bear arms, a ruling that canceled restrictive legislation in a variety of states. One option for a state legislature that wants such legislation is to pass a new versionw sufficiently different from the old that its lawyers can argue that the previous decision does not apply. The state enforces the new law while the case works its way through the federal court system to the Supreme Court. When it finally loses the case it passes a new law.

Does someone arrested under the law now found unconstitutional have a claim for damages? What about someone who got mugged due to not having carried a gun for self defense because of the law now found unconstitutional? Demonstrating that would raise serious evidential problems, but suppose he can overcome them.

This case raises the issue of the strategic use of legal delay, an issue also raised in the conflict between the Trump administration and the courts over the right of illegal immigrants to a legal hearing before being deported. In one recent case it seems clear that the administration was trying to deport purported Venezuelan gang members to prison in El Salvador without the legal process required by a previous Supreme Court verdict — before a judge could prevent them from doing so. They failed only because of an emergency order from the Supreme Court. In an earlier case the claim was made that a court order did not prevent a plane loaded with deportees from flying to El Salvador because the plane was out of US airspace by the time the order was made.

A recent case that raises some of the same issues is the deportation to El Salvador of Albrego Garcia, a Salvadoran citizen who had migrated illegally to the US. A judge had ruled that he could not be deported to El Salvador. The authorities concede that ignoring that and deporting him anyway was an error but claim that they cannot reverse it since he is now in a Salvadoran prison, not under US authority.

This case raises two different issues. If we accept the claim that the US authorities cannot bring him back, it is another example of the issue of whether the government is liable to people injured by indirect effects of a mistaken decision whose direct effect it cannot reverse. If we do not accept the claim, believe that the Salvadoran government would release him if the US government wanted it to, what legal consequence? How can US courts force the US government to do something it claims it cannot do?

I do not have a good legal answer to that question but I have an economic answer: Give the government an incentive to do it. In the Garcia case my solution, if I were unconstrained by any relevant legal rules, would be to rule that the inability of the US government to persuade the Salvadoran government to return someone mistakenly deported to El Salvador makes El Salvador an unsafe destination for US deportees, hence that until Garcia is returned nobody else can be deported to El Salvador.

It is an economic solution but not, I suspect, a politically viable one, since it requires Trump to visibly back down, to concede that his claim of inability to get Garcia back was a lie. The approach would work, however, if it were an established rule, if Trump knew in advance that claiming he could not get El Salvador to return Garcia would have that consequence.

Alternative Solutions

There are three different issues raised by such situations. One is a problem of justice, one of incentives, one of strategic behavior. None has a simple solution.

In the context of the acquitted defendant, it is tempting to argue that the tort law approach, a damage payment by the state sufficient to make the defendant whole, solves all three problems, compensates the defendant, gives the state an incentive to include the cost of being arrested to innocent defendants in designing legal rules, discourages a tactic of using the costs to punish people the state does not like but cannot convict.

One problem with that solution is that an acquittal does not mean that the defendant is innocent, only that he is not known to be guilty. A probability of guilt of seventy percent does not meet the criminal standard of proof beyond a reasonable doubt so the defendant is acquitted. But if the probability of guilt is seventy percent, the probability that the state has imposed costs on an innocent man is only thirty percent, so does not meet the tort standard of a preponderance of the evidence. One can imagine dealing with that problem by adopting the Scottish three-way verdict: Innocent, Not Proven, Guilty. “Innocent” entitles him to acquittal and compensation, “Not Proven” only to acquittal.

That, assuming judges or juries could make that fine a distinction in their verdicts, solves the problem for the innocent defendant, but there are still problems, given a realistic view of the court system. The cost of compensation gives the legal authorities an incentive both to be careful not to charge the innocent and to minimize the costs that the legal process imposes before conviction. But it also gives them an incentive not to find defendants innocent.

The one part of the problem for which the legal system already has a solution is the cost that pre-trial detention imposes on those convicted, since that can be deducted from the penalty as time served. I am now imagining, in a universe far away, a legal rule that entitles the innocent defendant to commit any crime whose punishment is no more than the time he spent in jail awaiting trial. Time served.

The obvious solution in the tariff case would be to refund to importers the amount they paid. To the extent that that was anticipated by importers when the tariffs were imposed it would reduce the price increase and so partly compensate the consumers of imported goods. To the extent it was not anticipated it would be a windfall to the importers. Either way it would reduce the attractiveness to an administration of the tactic, not original with Trump, of taking actions that it expected to be reversed by the courts — eventually.

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