Strictly Speaking: The Argument for Holding States Strictly Liable in Wrongful Conviction Suits



The wrongfully convicted are an oft overlooked demographic of the American population because society views wrongful convictions as rarely occurring.

But in fact, the numbers are quite staggering. The number of people exonerated in the last 30 years due to actual innocence? 2,500. The combined number of years unnecessarily spent in prison? 22,315. But the percentage of exonerees who ever receive compensation for wrongful imprisonment? Only 39%.

Despite the American legal system resting on the fundamental principle of holding people liable for injuries inflicted onto others, fifteen jurisdictions within the United States lack statutory protections that allow the wrongfully convicted to seek civil remedies for the years lost due to their illegitimate imprisonment caused at the hands of the state. However, even in states that do statutorily provide compensation to the wrongfully convicted, it has become common practice for prosecutors to effectively coerce inmates into waiving their right to sue for damages in exchange for a sooner release date. For instance, in 2016, Jimmy Dennis, a man who spent twenty-five years on death row for a crime he did not commit, was offered an immediate release from prison so long as he pled no contest to third-degree murder. Dennis accepted the offer, not as an admission of guilt, but because the alternative was to wait for a retrial that could have potentially taken years. Even though Dennis was entitled to upwards of a million dollars for his wrongful conviction, accepting the no contest offer foreclosed Dennis from any civil recourse because nearly every state requires a finding consistent with actual innocence in order for a wrongful conviction claim to succeed.

The best way to protect vulnerable people like Jimmy Dennis and to ensure that the wrongfully convicted receive the just compensation owed to them is for all states to pass a strict liability compensation scheme that places the responsibility fully on the state. This includes preventing states from using freedom as a substitute for compensation and automatically paying exonerees upon release (or shortly thereafter).

The argument for strict liability is one of fairness and asks who is better suited to bear the cost of a broken system. The very nature of the United States’ criminal justice system makes it incapable of always preventing the imprisonment of innocent people in the pursuit of justice, and, as such, there must exist a system that attempts to correct for the inevitable mistakes that occur. That idea underlies the basic concept of strict liability; indeed, as some legal scholars have noted, the theory of strict liability rests on the premise that in “any great undertaking . . . there are bound to be a number of accidents.” Under any analysis, the pursuit for truth and justice can be considered a great undertaking.

Evidence shows that the most common causes of wrongful convictions stem from mistakes that the state is better suited to fix. For instance, approximately 71% of DNA-related wrongful-conviction cases result from mistaken eyewitness identification. Empirical studies have shown that police investigators can reduce eyewitness error through relatively simple means, such as visually recording all eyewitness identifications and using a double-blind system. In spite of these statistics, though, states proceed with the faulty traditional identification procedures. Under a strict liability scheme, the law would recognize that the state as the least-cost avoider in preventing future eyewitness error and, thus, has the greatest ability in avoiding wrongful convictions. In these circumstances, the state should be held liable for all injuries related to wrongful convictions in order to incentivize enacting policies that reduce potential future harm.

Some opponents of strict liability statutory schemes, especially those in the early days of compensation statutes, argue that the cost of holding states strictly liable outweighs any favorable features. Opponents believe that a strict liability statute would complicate the determination of which individuals actually deserve compensation and, thus would lead to higher payouts. Additionally, opponents suggest that strict liability could potentially deter police and prosecutors from vigorously pursuing criminals.

In contrast, others have noted that these deterrence and efficiency concerns are unpersuasive. First, in regard to the cost, proponents of strict liability statutes point out that statutory compensation schemes as they exist today have not been exorbitant in nature thus far. However, even if the amount paid out were to increase, the state should still bear the cost in order to fix the mistake that it made. Undeniably, as one scholar notes, at various points within our history, the government has had to drastically adapt to new situations in order to meet the demands of the people; doing the same to compensate the wrongfully convicted would be worthwhile in the interests of justice. Second, on concerns of maintaining the efficacy of police officers and prosecutors, statistics show that similar statutory schemes in other countries have not damaged or weakened the reputation of those countries’ criminal justice systems.

Further, while the states that do currently utilize statutory compensation do indeed follow a strict liability structure, these statutes still require reform. In particular, statutes require amendment to allow compensation for the wrongfully convicted immediately upon release and without a finding consistent with actual innocence.

It is well-documented that individuals wrongfully imprisoned lose more than just wages and salaries while locked away. Indeed, most inmates—regardless of the accuracy of their conviction—will leave prison with a major mental illness, and many will often lack opportunities for housing and employment upon release due to the stigma surrounding their conviction. Indeed, without a strict liability statute that guarantees compensation immediately upon release, many former inmates become homeless. Moreover, even if the released individual can secure housing, exorbitant costs associated with treating ongoing mental illness can prove too prohibitive for someone without an income or access to healthcare.

To ensure payment immediately upon release, states must remove the requirement of a finding consistent with actual innocence or, at the very least, lessen the burden of proof required to find innocence. As in the case of Jimmy Dennis, states have been known to abuse their discretionary privileges in order to procure a finding inconsistent with actual innocence and preclude restitution. After all, the state is in the better position to prevent wrongful convictions, it should be the burden of the state to show why a finding of actual innocence is necessary to withhold compensation. Even if such an extreme measure were not taken, however, the burden of proof in nearly half of states with compensation statutes remains clear and convincing evidence of actual innocence, which requires a higher showing than proof beyond a preponderance of the evidence. While some have noted that the burden of proof rarely impacts the outcome of a compensation case, the higher burden nevertheless saddles the individual with an additional encumbrance that would have never existed in a perfect world.

Further, compensation statutes should also eradicate language that makes it impossible for individuals who pled guilty at trial to receive compensation. Statutes that forbid recovery to those who take guilty pleas ignore the multitude of reasons that an individual might have taken a plea, which can include coercion by police officers and prosecutors. Additional changes by legislatures are also necessary to make compensation as fair as possible, including removing caps on compensation; automatically expunging the exonerees’ records; and designating funds to state programs that provide resources to exonerees free of charge (to name a few).

In total, these modified strict liability approaches are unprecedented and will undoubtedly take a vast reallocation of resources to implement. But our criminal justice system owes it to those who have lost huge portions of their lives due to the government’s mistakes to take extraordinary measures, both ideologically and financially.


thomas shannanThomas Shannan is a J.D. candidate for the Cornell Law School class of 2021. He earned his B.S. in Child Psychology and English Literature from Vanderbilt University in 2017. In addition to writing for The Issue Spotter, Thomas serves as an associate for the Capital Punishment and Criminal Defense Trial Clinics, an Honors Fellow for the first-year lawyering program, and the Secretary of the Public Interest Law Union. His interests include internet privacy, juvenile justice, and criminal defense. Outside of law school, Thomas enjoys playing squash with his friends and being ignored by his cat, Ellie.

Suggested citation: Suggested Citation: Thomas Shannan, Strictly Speaking: The Argument for Holding States Strictly Liable in Wrongful Conviction Suits, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (March 9, 2020),




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