CRAZY COMPENSATION RULES

James Newsome and Anthony Porter were convicted of murders they did not commit. Both languished behind bars for more than 15 years before their innocence was established. Both sued the Chicago Police. Newsome's jury awarded him $15 million. Porter's jury awarded him -- nothing. The disparate outcomes hinged on one factor: Newsome was able, but Porter unable, to prove to a jury that he had been the victim of overt police misconduct.

Police are immune from civil damages as long as they act in good faith. There is little doubt that a competent police investigation would have shown that the witnesses who claimed to have seen Porter commit the crime were lying -- a building blocked their line of sight. But Porter, in his jury's view, established only that his wrongful conviction resulted from negligence, which is worthless in a wrongful conviction case. Unless you can prove that the police acted in bad faith, you are entitled to nothing.

After denying Porter's claim, jurors said they would have awarded him millions, if they could have. Porter, however, deserves more than sympathy. He deserves fair compensation, which either the City Council or the Illinois General Assembly ought now to provide through special legislation.

Porter also deserves a legacy in the form of legislation named for him to assure fair compensation for innocent persons. At present, automatic compensation in Illinois is limited to about $160,000, in addition to which a lawsuit may be filed. It would be preferable to increase that amount substantially but require that a wrongfully convicted person waive the right to sue.

The General Assembly should extend the principle of eminent domain -- which requires fair compensation when private property is taken for a public purpose -- to the priceless commodity we call freedom. The law should recognize that those who commit serious crimes forfeit their freedom and deserve no compensation, but that, when innocence itself is brought to the bar and condemned, prompt and ample remuneration should be the government's legal obligation.

More important, the compensation ought not depend on proving that the police acted in bad faith, but rather -- borrowing the no-fault insurance concept -- strictly on the degree and duration of the pain and suffering resulting from the wrongful conviction.

The Newsome case illuminates the concept of fair compensation. The award might appear frighteningly high -- a million dollars a year. But it shows why it would be in the interest of most litigants to settle for far less.

Newsome's legal fees consumed one-fifth of the award and, more significantly, he assumed a huge risk in taking his claim to trial. Thus, given a reasonable offer at the onset, litigants in Newsome's situation might find elimination of risk could easily be would be worth as much as half of a prospective settlement and take into account the value of being compensated promptly after exoneration, rather than waiting seven years, as Newsome did, for a resolution. Taking these various factors into account, many litigants in Newsome's situation would have an incentive to settle for as little as $250,000 a year.

The offer should be automatic, with the state and the local government entity splitting the amount equally. But if a wrongfully convicted person were unwilling to take the deal, the case could proceed to litigation or arbitration.

From the taxpayers' perspective, such a system could be a boon. The savings in one just case like James Newsome's would be enough to fairly compensate an Anthony Porter several times over.

(Article from here)


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