Instapundit's Moral Hazard

Responding to the news that one of the prosecutors of the Central Park Joggers thinks the teenage gangsters are innocent of the rape and beating, Instapundit proposes that innocents who are wrongly sent to prison receive $1 million per year to compensate them for the miscarriage of justice. Setting aside the question of whether these particular convicts are innocent, is a jackpot-for-time-served policy wise?

One of the key premises undergirding the American adversarial justice system is that the parties are fully motivated to win. The truth is expected to arise as both sides present evidence and witnesses and challenge the evidence and witnesses of their opponents. But promising to pay the accused $1 million per year if they lose removes some of their desire to win. The incentive for many people would be significant, and for some people it would be overwhelming. O Henry wrote a story, The Cop and the Anthem, about an indigent man who commits a petty crime every December in order to spend the winter in a warm jail with three meals a day. Add to the calculus $1 million per year, and it's conceivable that others might be willing to join him in the cells. I have a good job, but I would entertain the thought of going to jail for 12 months for $1 million.

Even if the ex ante incentive isn't a concern, as in the case of the Central Park Jogger convicts, our moral duty to compensate arises only for those defendents that maintain their innocence throughout the investigation and prosecution. I don't have much sympathy for innocents who, with their parents present, confess to a crime, claim to have intimate knowledge of what happened, and lead investigators to the scene.