The Case for Comparative Fault in Compensating the Wrongfully Convicted


The issue of compensating the wrongfully convicted has recently been thrust into public awareness. Over one hundred and fifty people have been exonerated through DNA evidence since 2000. Only half have received compensation for their time behind bars. While twenty-two states have enacted statutes that provide a direct legal right to compensation, these statutes require victims of wrongful conviction to jump substantial hurdles and often provide inadequate compensation even then. Moreover, two-thirds of these statutes bar compensation entirely if the claimant contributed to the conviction in some way. This Comment proposes that a claimant’s contributory conduct should be a factor in determining the quantum of damages rather than per se eligibility. Reducing compensation in proportion to a claimant’s fault better serves the efficiency and fairness-based justifications that underlie statutory compensation. It also tracks the broader shift in tort law from contributory negligence to comparative fault. The wisdom of a comparative fault approach to compensation statutes has been recognized and applied by other countries. This Comment argues that a similar framework should be adopted in the United States.

About the Author

Comments Editor, UCLA Law Review, Volume 56. J.D. Candidate, UCLA School of Law, 2009; A.B. Dartmouth College, 2003

By uclalaw