Tag Archives: sentencing

What Is Innocence Worth?

lorish innocence FLAT

In its recent Nelson v. Colorado decision, the Supreme Court affirmed what might have seemed to require no formal affirmation—namely, that a person whose criminal conviction is overturned on appeal is entitled to the return of any fees, court costs, or restitution paid to the state as a result of the conviction. Previously, the state of Colorado required an exonerated defendant to file a separate civil suit and prove actual innocence by clear and convincing evidence before funds would be repaid. Having a conviction overturned on a mere legal technicality would not suffice for financial recovery. The central question in the case—which was decided six to one in favor of the petitioners, with Justice Clarence Thomas dissenting—concerned due process.

While it was notable that the Supreme Court took up such a seemingly self-evident case, the Court did not address the question of compensation for periods of wrongful incarceration. Justice Ginsburg, writing for the majority, explained that the “[petitioners] seek restoration of funds they paid to the State, not compensation for temporary deprivation of those funds. Petitioners seek only their money back, not interest on those funds for the period the funds were in the State’s custody.” Justice Ginsburg continued: “Just as the restoration of liberty on reversal of a conviction is not compensation, neither is the return of money taken by the State on account of the conviction.” She made it clear what compensation is and what it is not: While compensation may be the return of something wrongfully taken, it is not necessarily compensation to be released from prison in which one was held for no lawful reason in the first place. Compensation is something more—an award for loss, suffering, or an injury. Continue reading

. . . . . . . .

Like The Hedgehog Review on Facebook, follow us on Twitter, and subscribe to our posts via RSS.


Crime, Punishment, and Serial


I no longer care whether Adnan Syed is guilty or not guilty. For me, if he is guilty, the big question is how long he should be in jail.

The first season of what may be the world’s most analyzed podcast, Serial, will come to an end this week. Serial, a weekly nonfiction radio saga from the producers of This American Life, garnered a huge and immediate following when it reopened a 1999 investigation into the death by strangulation of a Baltimore high-school student, Hae Min Lee, and Adnan Syed, the ex-boyfriend convicted of her murder. A subculture of listeners devoted to discussing and debating the guilt or innocence of Adnan quickly spawned a podcast discussing the podcast, endless reddit feeds, “Free Adnan” t-shirts, and, particularly popular this week, predictions of how the series will end.

After the dust settles with this week’s concluding episode, and regardless of whether the show’s producer and host Sarah Koenig says she believes Adnan is guilty or innocent, or whether Mike Pesca’s widely repeated quip “Don’t let this be a contemplation on the nature of the truth” proves to be true, I’m thinking about different questions. If Adnan is guilty (and I tend to lean that way, although like any follower, my conviction wavers), has he already served enough time? In other words, now that we know Adnan, or feel as though we do, should that change our view on the severity of sentences imposed? What are the goals of a prison sentence anyway? Particularly a life sentence.

I first started thinking about this because Adnan and I are the same age, although, full disclosure, I also think about these things every day in my job as a public defender. I graduated from high school in 1999, when Adnan would have graduated had he not been convicted of murdering his ex-girlfriend. Adnan is 15 years into his lifetime sentence plus 30 years for first-degree murder. During those same 15 years, I graduated from high school, college, and law school, lived in five different places, married, and gave birth to two children. Having been in prison from age 17 to age 33, Adnan has already missed out on the prime years of his life, when he would have completed his education and put in place the foundation of a productive career. Even If he were magically released today, he would carry his felony conviction with him, a stigma that would complicate any potential job prospect and possibly prevent him from receiving government benefits if he didn’t find work. In other words, in addition to 15 years of incarceration and numerous missed opportunities, he would face incredibly limited odds for future success.

That said, are 15 years and the prospect of a dismal future sufficient punishment for murder? What about 20 years? Of course,  the fact that this is murder is what makes it so interesting. Our federal prisons are filled with drug offenders (50.6 percent), with violent offenders making up only 5.9 percent of that population. There is a broad consensus that the increase in prison population (500 percent in the last 40 years) and the increase in the length of criminal sentences (a 36 percent increase from 1990 to 2009) is correlated with the “war on drugs,” what many would argue is victimless crime that leads to unnecessarily long sentences. But 53 percent of state offenders committed violent offenses, not all murders, although some in the same category as Adnan. So how much prison time is enough for these offenders—or for any offender?

The Criminal Law 101 theories of punishment are simple:

  • Retribution—An appeal to a societal sense of justice about punishing wrongdoing because of what we all know to be right and wrong
  • Deterrence—“Specific,” to deter the individual offender from committing a similar crime again; and “general,” to deter other people from committing a similar crime.
  • Rehabilitation—Reforming the offender to prevent future criminal behavior through education, counselling, treatment, etc.
  • Restoration—Repaying the victim or society for the cost of misdeeds, sometimes financial
  • Incapacitation—Physically removing offenders from society to keep them from committing additional crimes

The difficulty, of course, is applying the particulars of each case to this broad framework of punishment, while also keeping in mind the costs to society of paying for incarceration. On average, it costs $29,000  per annum for each person in federal prison. Taxpayers contribute more than $50 billion annually toward state prisons.

In the case of murder, American criminal law prioritizes retribution above all else. This emphasis often results in the imposition of a life sentence. By contrast, Norway caps all prison sentences at twenty-one years, with the assumption that rehabilitation has occurred by then, although the sentence may be extended in five-year increments if the prison system determines that rehabilitation has not occurred. In the United States, the mandatory minimum sentence for first-degree murder under federal law—life without parole—differs substantially from those imposed by Australia, New Zealand, or Canada.  All three set minimums of five years up to life, with the possibility of parole.

Are murderers irredeemable? Does age matter? What about really likeable murderers who interview well? What if the central question of Serial is not who took Hae Lee’s life, but whether or not we are justified in abandoning all hope of rehabilitating Adnan? Someone please send me a link to the reddit feed where we can start discussing sentencing. In a system where 97 percent of criminal defendants plead guilty instead of going to trial, questions about sentencing may be even more important than questions about guilt or innocence.

Lisa Lorish is an assistant federal public defender in the Western District of Virginia and a graduate of the University of Virginia School of Law.

. . . . . . . .

Like The Hedgehog Review on Facebook, follow us on Twitter, and subscribe to our posts via RSS.