Pain, suffering, and jury awards: A study of the cost of wrongful convictions

• Published date: 01 November 2021
• Author: Mark A. Cohen
• Date: 01 November 2021
• DOI: http://doi.org/10.1111/1745-9133.12559

DOI: 10.1111/1745-9133 .12559

ORIGINAL ARTICLE

Pain, suffering, and jury awards: A study of the

cost of wrongful convictions

Mark A. Cohen

Owen Graduate School of Management,

Vanderbilt University, Nashville,

Tennessee

Correspondence

MarkA. Cohen, Owen Graduate School of

Management,Vanderbilt University, 401

21stAvenue South, Nashville, TN 37203.

Email:mark.cohen@vanderbilt.edu

Research summary: This paper estimates the cost of

wrongful convictions based on analysis of jury awards

and settlements for individuals who were wrongfully

convicted and incarcerated for crimes they did not com-

mit. Key variables of interest are number of daysspent in

prison, days on probation, and demographics of wrong-

fully convicted and their families. The average “cost” of

a wrongful conviction is estimated to be $6.1 million,

or $1334 per day of incarceration, while the marginal

cost decreases over time: initial incarceration is valued

at over $50,000 for the first day; year one is valued

at $1.5 million ($4000/day), while the marginal cost of

the 10th year is estimated to be approximately $350,000

($950/day).

Policy implications: State mandated compensation for

wrongfully convicted individuals who oftentimes spend

years in prison for crimes they did not commit is highly

variable and in many cases bears little relationship to

either the monetary or nonmonetary harms endured. In

addition to providing benchmarks for more appropriate

compensation, these estimates provide a foundation for

future benefit-cost analyses of policies that might reduce

wrongful convictions such as increased expenditures for

DNA testing or indigent defense counsel.

KEYWORDS

cost of incarceration, false imprisonment, jury awards, wrongful

conviction

Criminology & Public Policy. 2021;20:691–727. © 2021 American Society of Criminology 691wileyonlinelibrary.com/journal/capp

692 COHEN

1 INTRODUCTION

Despite the high legal standards of criminal conviction and many safeguards built into the U.S.

criminal justice system, there is growing evidence that a significant number of individuals have

been wrongfully convicted and incarcerated—and that they either never committed the crime

or there was insufficient evidence at the time of conviction under traditional legal standards.

The National Registry of Exonerations (“Registry”) based at the Newkirk Center for Science &

Society at UC Irvine (operated jointly with the University of Michigan Law School and Michi-

gan State Univ. School of Law), maintains a registry of convicted offenders in the United States

who were later exonerated for their crimes of conviction—most of whom served time in prison

(http://www.law.umich.edu/special/exoneration/). Between January 1989 and November 2020,

the Registry identified nearly 2700 defendants who were exonerated for crimes they were con-

victed of previously—serving over 24,350 years in prison before being released.About 4 0% of these

defendants were convicted of murder, 13% for sexual assault or rape, 11% for child sexual abuse

crimes, with the remaining crimes mostly being other violent crimes such as assault or nonvio-

lent drug offenses. The average time served for these defendants was approximately10 years, with

some individuals having spent more than 30 years in prison before being exonerated.1Becausenot

all wrongfully convicted offenders are identified by the criminal justice system, some are let out

after normal time served and/or die in prison, and others whose convictions are later overturned

but were never formally exonerated are excluded from the database, the number of wrongfully

convicted individuals is certainly higher.

This paper attempts to place a dollar “cost” on the time spent in prison to those who are wrong-

fully convicted of a crime they did not commit. There are several reasons why one might want

to estimate the cost of wrongful convictions. One reason might be to compensate individuals

who have been wrongfully convicted and served time in prison. Prior information about the cost

of wrongful convictions might assist judges, juries, or legislators about the level of compensa-

tion deemed to be appropriate by members of society at large. Much like a tort action, compen-

sating victims can serve the dual purpose of mitigating the harm they endured as well as pro-

viding an incentive on the part of the tortfeaser to avoid causing harm in the first place—that

is, to deter wrongful convictions. However, in most instances of wrongful convictions, the only

responsible parties are government agencies (or their agents) and thus compensation is less likely

to have an incentive effect than it would if private actors were being held financially account-

able. Of course, even government officials might be deterred if their jobs (whether elected or

appointed) were in jeopardy if their budgets are hit with multimillion-dollar lawsuits. More-

over, many of these lawsuitsalso include individual police off icers or other lawenforcement offi-

cials who are personally subject to financial liability as well. Regardless, while society might not

deem appropriate victim compensation to be the same as the “optimal penalty” charged to the

tortfeaser, most compensation calculations start from the perspective of victim harm (Viscusi,

2007).

Aside from ex post victim compensation, from an ex ante benefit-cost perspective, economists

want to know the “price” society should be willing to pay to avoidwrongful convictions. Thus, for

example, if changing a legal standard to require DNA testing of all accused felons cost $1 million

annually and avoided wrongfully convicting one individual, is that a price we are willing to pay?

As with any criminal justice enforcement policy, there are bound to be both false positives (Type

I errors) and false negatives (Type II errors). Presumably, the high legal standards of proof in

criminal cases are designed to minimize the number of false positives—even allowing for the fact

COHEN 693

that the price of protecting the innocent is likely to be a higher level of false negatives—letting

offenders off the hook due to lack of sufficient evidence. From a public policy perspective, one

way to think about this trade-off is the social benefits and costs of a Type I versus Type II error.

Indeed, the economics of crime literature recognized early on that one reason society does not

impose draconian penalties as a deterrent to criminal behavior is the social cost associated with

wrongful conviction—including the long-term impact on the well-being of individuals wrongfully

incarcerated (Becker,1968; Harris, 1970). It has also been noted that wrongful incarcerations might

reduce the deterrent effect of punishment (Polinsky & Shavell, 2007); although more recently,

the impact of wrongful conviction on deterrence has shown to be ambiguous (Lando & Mungan,

2018).

Whether designed for victim compensation or as part of a social benefit-cost analysis, the start-

ing point for any such policy analysis should be to understand the cost to wrongfully convicted

individuals. Section 2reviews the prior literature on the prevalence and impact of wrongful con-

victions, while Section 3reviews the literature on compensation for wrongful convictions. The

present study’s data collection methodology and definitions are explained in Section 4. Section

5presents the empirical analysis, while policy implications are contained in Section 6. Finally,

Section 7concludes with an exploration of future research needs.

2 PREVALENCE AND IMPACT OF WRONGFUL CONVICTIONS

2.1 Prior research on prevalence

Not too long ago, it was thought that wrongful convictions were extremely rare. In his seminal

book on DNA evidence and wrongful convictions, Garrett (2011) cites numerous legal scholars

indicating that the U.S. legal system is designed to protect the innocent and thus preventswrong-

ful convictions. In fact, although there is considerable uncertainty about the rate of wrongful con-

victions in the United States, there is also growing evidence that the problem is more prevalent

than thought prior to the advent of DNA testing. One study estimated that at least 4.1% of all

death-sentence defendants were wrongfully convicted (Gross et al., 2014). As the authors note,

death sentences represent only a small fraction of defendants—even for those convicted of mur-

der. Moreover, there is no way to generalize from these estimates to other felony convictions—

and in fact, the wrongful conviction rate for murder might be higher than average. For example,

murder cases are high profile and police might be under more pressure to “solve” these crimes

compared to other felonies.

Beyond studies of death-sentence defendants, estimates of wrongful convictions vary widely.

For example, surveys of criminal justice professionalsestimate the rate to be 1–3%; studies of DNA

exonerations for rape and murder cases have found rates of 3–5%; and those who have evaluated

all the relevant evidence estimate the wrongful conviction rate to be 1–5% of all convicted felons

(Gross, 2013;Zalman,2012). A recent survey of new prisoners in one state found that 6% had

“plausible” claims of wrongful conviction—varying from as little as 2% of DUI convictions to as

much as 40% in rape convictions (Loeffler et al., 2019). A random sample of cases in Virginia

concluded that as many as 12% of all murder and sexual assault cases may have been wrongful

convictions (Walsh et al., 2017). On the other hand, a secondary analysis of existing studies sug-

gests the wrongful conviction rate might be considerably below 1% (Cassell, 2018)—particularly

when moving beyond murder and rape cases.