If a person who is unjustly punished deserves compensation, should it be at the expense of innocent taxpayers? An alternative is to sue the public officials who are responsible for the injustice.
Good if you can do it, but determining whose mistake is responsible is harder than determining that a mistake has been made. In practice, governments usually cover the expenses of their agents who get sued.
I am told that in the 19th century, books for teaching men to be police officers devoted a good deal of attention to how not to be sued. When it became impractical to sue police officers for illegal searches and the like, whether because of legal changes or because their employers indemnified them I don't know, the rule that evidence produced by an illegal search could not be used developed as a substitute.
According to Thomas Sowell, there are no solutions, only trade-offs. Objections can be raised to any proposal. Perfection seems to be unobtainable. The best we can do is pick the most nearly satisfactory proposal from the available alternatives. I don't claim to know what that proposal would be. However, it seems to me that providing police and court services in a private competitive market, as you recommend, would be an improvement over the current system. Competition should improve service and lower costs. Firms that acquired a reputation for injustice and faced expensive lawsuits would tend to go out of business. That would give other firms an incentive to be just.
That is exactly the problem I was going to mention. I can see that system degrading to one where prosecutors bring charges they don’t intend to stick against their friends, then whoops sorry our bad, and pay out a large chunk of taxpayer money.
If that seems crazy, I believe that is the standard for getting rules through the EPA that can’t get sign off: have an environmental group sue to force the rule, throw up your hands and give in, and enact the rule you wanted while paying for legal costs.
It doesn't make sense in this case, since you have to inflict the cost of imprisonment or bail bond in order to have something to compensate your friends for.
Yes, but I can see that being extended to "house arrest" or otherwise wearing an ankle monitor, plus things like legal costs or costs incurred (missed work, etc). I think that you are right, that there should be recompense for the process, seeing as how often the process is the punishment and prosecutors don't seem to mind screwing with people months or years.
This problem has a lot less to do with your suggestions and more to do with individual government actors not being individually liable, I think. So long as someone else pays the costs for public employee's actions they have very little incentive to not behave badly, so long as their employer/oversight is fine with it.
Your incentive-based solution for resolving the erroneous deportation issue seems effective, provided the administration respects the court's decision. However, what would you recommend if the administration refuses to comply with the court’s ruling?
That eventually leads to civil war or something close. Enforcers either do or do not go along with the administration. It's a problem some people anticipate in the near future but it hasn't happened yet and my guess is won't. That is part of my disagreement with Tom Palmer, discussed in a recent comment thread.
Jed Rubenfeld has some great videos on the legal aspects of the deportation cases. His channel is 'Straight Down the Middle'. I recommend him through gritted teeth as I asked him to come on my podcast, he said yes and has since ghosted me. I don't mind being told 'no' but this is so frustrating! Whining from me aside, he is great on this stuff and on other cases (especially Trump related). Can't recommend too highly (but grumble, grumble . . .).
Oh and my podcast (on which David Friedman was a very early guest) has been going great guns recently - this on the Opium War a particularly good one. David might like it as it is an example of free trade being a disaster - they moved control at Canton out of the hands of the EIC and with nobody really in charge things went south pretty fast.
The podcast is called Subject to Change with Russell Hogg and here is a link to the Opium Wars one.
"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."
Current law addresses the general issue--liability is a question of fact: whether there is sufficient proximate cause to warrant liability. There are, of course other factors, such as governmental immunity that also factor in. It is likely that getting mugged due to not carrying gun for self defense would be ruled not a proximate cause because it is too remote, too unforeseeable, and too speculative.
Regarding compensation for convictions under a law later declared unconstitutional, my Chartertopia treats that as similar to a thief who steals a credit card and buys things before the theft is discovered. He doesn't get to keep those things; the theft was a theft right from the start, not only from when it was discovered.
So for an unconstitutional law. It was unconstitutional right from the start, not only from when it was challenged or only from when the final court confirmed it. All convictions since the beginning have to be undone. Of course, if a law has several parts and only one part is declared unconstitutional, only those convictions are undone.
That's the easy part and I think already happens. The issue is whether someone who spent six months in jail before the law was found unconstitutional is entitled to any compensation — and, as John asks, from whom.
One possibility is that before someone can be punished under a law being challenged in court, some person or government department has to commit to compensating him if the challenge succeeds.
Under Athenian law, in their equivalent of a tort suit, the plaintiff owes the defendant one sixth of the amount he claimed the defendant owed if he fails to get at least 20% of the (very large) jury to vote for conviction.
One of my "hobbies" while coming up with Chartertopia, and since, has been reading Volokh Conspiracy and occasional other legal blogs. I saw too many cases of old convictions remaining in force when a law was declared unconstitutional. Maybe it is the glacial pace of the legal system and they do eventually get undone, and I just never noticed them. I don't have any idea what the proportion is, whether 1% or 99%.
Victim prosecution is my standard, and it makes the compensation easy to assign, but not always easy to collect.
As much as I hate dumping on taxpayers, the argument for government having a monopoly on criminal prosecution is that fiction of government prosecutors representing the public; "The People v. John Doe" and such. It has to be the taxpayers paying compensation, but it can always come from the prosecutor's budget. Your idea of no prosecution until someone in government has committed to take responsibility for reversals is even better.
I also think prosecutors should not be able to drop any charges; they must all go to trial. Subtract the maximum possible punishment of all acquitted charges from the actual sentence of all convicted charges; if it comes out negative, cancel the sentence and pay the defendant the excess, at whatever the going rate is for false convictions. I'm not sure how this would affect plea deals. It's easy to imagine a jury choosing "guilty" for dubious charges just to avoid the defendant getting released with a pile of money.
If a person who is unjustly punished deserves compensation, should it be at the expense of innocent taxpayers? An alternative is to sue the public officials who are responsible for the injustice.
Good if you can do it, but determining whose mistake is responsible is harder than determining that a mistake has been made. In practice, governments usually cover the expenses of their agents who get sued.
I am told that in the 19th century, books for teaching men to be police officers devoted a good deal of attention to how not to be sued. When it became impractical to sue police officers for illegal searches and the like, whether because of legal changes or because their employers indemnified them I don't know, the rule that evidence produced by an illegal search could not be used developed as a substitute.
According to Thomas Sowell, there are no solutions, only trade-offs. Objections can be raised to any proposal. Perfection seems to be unobtainable. The best we can do is pick the most nearly satisfactory proposal from the available alternatives. I don't claim to know what that proposal would be. However, it seems to me that providing police and court services in a private competitive market, as you recommend, would be an improvement over the current system. Competition should improve service and lower costs. Firms that acquired a reputation for injustice and faced expensive lawsuits would tend to go out of business. That would give other firms an incentive to be just.
That is exactly the problem I was going to mention. I can see that system degrading to one where prosecutors bring charges they don’t intend to stick against their friends, then whoops sorry our bad, and pay out a large chunk of taxpayer money.
If that seems crazy, I believe that is the standard for getting rules through the EPA that can’t get sign off: have an environmental group sue to force the rule, throw up your hands and give in, and enact the rule you wanted while paying for legal costs.
It doesn't make sense in this case, since you have to inflict the cost of imprisonment or bail bond in order to have something to compensate your friends for.
Yes, but I can see that being extended to "house arrest" or otherwise wearing an ankle monitor, plus things like legal costs or costs incurred (missed work, etc). I think that you are right, that there should be recompense for the process, seeing as how often the process is the punishment and prosecutors don't seem to mind screwing with people months or years.
This problem has a lot less to do with your suggestions and more to do with individual government actors not being individually liable, I think. So long as someone else pays the costs for public employee's actions they have very little incentive to not behave badly, so long as their employer/oversight is fine with it.
Your incentive-based solution for resolving the erroneous deportation issue seems effective, provided the administration respects the court's decision. However, what would you recommend if the administration refuses to comply with the court’s ruling?
That eventually leads to civil war or something close. Enforcers either do or do not go along with the administration. It's a problem some people anticipate in the near future but it hasn't happened yet and my guess is won't. That is part of my disagreement with Tom Palmer, discussed in a recent comment thread.
Jed Rubenfeld has some great videos on the legal aspects of the deportation cases. His channel is 'Straight Down the Middle'. I recommend him through gritted teeth as I asked him to come on my podcast, he said yes and has since ghosted me. I don't mind being told 'no' but this is so frustrating! Whining from me aside, he is great on this stuff and on other cases (especially Trump related). Can't recommend too highly (but grumble, grumble . . .).
Oh and my podcast (on which David Friedman was a very early guest) has been going great guns recently - this on the Opium War a particularly good one. David might like it as it is an example of free trade being a disaster - they moved control at Canton out of the hands of the EIC and with nobody really in charge things went south pretty fast.
The podcast is called Subject to Change with Russell Hogg and here is a link to the Opium Wars one.
https://pod.link/1436447503/episode/0e09dfd011ff93784cffec2f9d206cd5
"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."
Current law addresses the general issue--liability is a question of fact: whether there is sufficient proximate cause to warrant liability. There are, of course other factors, such as governmental immunity that also factor in. It is likely that getting mugged due to not carrying gun for self defense would be ruled not a proximate cause because it is too remote, too unforeseeable, and too speculative.
Regarding compensation for convictions under a law later declared unconstitutional, my Chartertopia treats that as similar to a thief who steals a credit card and buys things before the theft is discovered. He doesn't get to keep those things; the theft was a theft right from the start, not only from when it was discovered.
So for an unconstitutional law. It was unconstitutional right from the start, not only from when it was challenged or only from when the final court confirmed it. All convictions since the beginning have to be undone. Of course, if a law has several parts and only one part is declared unconstitutional, only those convictions are undone.
That's the easy part and I think already happens. The issue is whether someone who spent six months in jail before the law was found unconstitutional is entitled to any compensation — and, as John asks, from whom.
One possibility is that before someone can be punished under a law being challenged in court, some person or government department has to commit to compensating him if the challenge succeeds.
Under Athenian law, in their equivalent of a tort suit, the plaintiff owes the defendant one sixth of the amount he claimed the defendant owed if he fails to get at least 20% of the (very large) jury to vote for conviction.
One of my "hobbies" while coming up with Chartertopia, and since, has been reading Volokh Conspiracy and occasional other legal blogs. I saw too many cases of old convictions remaining in force when a law was declared unconstitutional. Maybe it is the glacial pace of the legal system and they do eventually get undone, and I just never noticed them. I don't have any idea what the proportion is, whether 1% or 99%.
Victim prosecution is my standard, and it makes the compensation easy to assign, but not always easy to collect.
As much as I hate dumping on taxpayers, the argument for government having a monopoly on criminal prosecution is that fiction of government prosecutors representing the public; "The People v. John Doe" and such. It has to be the taxpayers paying compensation, but it can always come from the prosecutor's budget. Your idea of no prosecution until someone in government has committed to take responsibility for reversals is even better.
I also think prosecutors should not be able to drop any charges; they must all go to trial. Subtract the maximum possible punishment of all acquitted charges from the actual sentence of all convicted charges; if it comes out negative, cancel the sentence and pay the defendant the excess, at whatever the going rate is for false convictions. I'm not sure how this would affect plea deals. It's easy to imagine a jury choosing "guilty" for dubious charges just to avoid the defendant getting released with a pile of money.