What is freedom worth?

As we know, our criminal-justice system is far from perfect, and over time its failings have sent many innocent people to the execution chamber or to languish in prison for long periods of time.

The advent of DNA testing has brought the warts on the system into sharp relief, exonerating prisoners who have been found guilty “beyond a reasonable doubt” by a jury. The presence of DNA evidence from the crime scene has led to freedom for poor and forgotten people, especially minorities, who had few resources to fight with in the first place. Also, DNA testing is making some law enforcement officials aware that wrongful conviction is not a rare or isolated event and that greater care in the pursuit of justice is more important than a headlong rush for high conviction rates for their annual reports.

Easily the most important current effort being made to right the wrongs of the system is that of the Innocence Project, a non-profit organization begun in 1992 and operated by the Benjamin Cardozo School of Law in New York City. It handles only cases where post-conviction DNA testing of evidence can yield conclusive proof of innocence. In its first 10 years, the project has won freedom for 126 inmates, 108 of whose convictions involved eyewitness identification error. Other contributing “biometric” evidence errors arise from identification through the mismatching of handwriting, fingerprints and palm prints, bite wounds and composite drawings.

When a conviction is overturned by DNA evidence, the news media customarily show the overjoyed convict outside the jail or courthouse with arms raised to heaven in thanks for his or her newfound freedom. The media always focus on the years of lost freedom, neglecting to mention the punishment of prison itself with its dismal cells, lockstep life, homosexual rapes, institutional food, forced labor, solitary confinement, etc. The media never focus on what happens next in the fractured life of the person who only hours earlier was wrongly paying his or her debt to society in prison. Does society in turn owe a debt to the innocent prisoner?

Sixteen states believe that compensating prisoners found innocent is only fair, but such compensation varies. For example, California pays $100 for every day wrongfully spent in prison, while Ohio pays $40,000 for each year in prison. Wisconsin allows only $25,000, while North Carolina allows $150,000 maximum.

Eventually, the other 34 states may come around, but for now they have bought into the idea that the jury, not the state, made a mistake, so the state owes nothing. Bad reasoning. The prosecutor’s "infallible" evidence—accepted for the trial record by the judge—and the judge’s instructions to the jury usually lead the jury to its decision.