Like wrongful imprisonment. Today's Post has an interesting article on Maryland's struggle with compensation for the wrongfully imprisoned. Although the article never makes the comparison, this sounds disturbingly like the calculus that "loss of a single joint of a finger results in compensation of $5,000, two joints $10,000, and the complete finger $20,000" sort of thing that one sees in workers' compensation systems. Applying that kind of reasoningwhere the injury in question is clear, it is only the valuation that might be at issue once "fault" has been foundto the kind of intangible harms of caused by wrongful imprisonment would also neglect the most important "procedural" difference between the two: That how "wrongful" the imprisonment was is inextricably intertwined with the sentence imposed, the time between conviction and determination that imprisonment was wrongful, the context of the crime for which imprisoned, and so on.
The real problem here is a Seventh Amendment issue. The Seventh Amendment requires that "no fact tried by jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." This is part of where we get our "finality" doctrine. (By its terms, the Seventh Amendment applies only to civil matters; however, its principles are reflected in the Double Jeopardy clause, and a suit for compensation for wrongful imprisonment is a civil matter, even though it results ultimately from a criminal conviction.) It also, however, masks a definitional issue. Can a "fact" have been "tried by a jury" if relevant, admissible evidence did not enter its reach (leaving aside tactical decisions by lawyers)? And, in that instance, what do we mean by "fact"? Is it the "fact" of guilt? Is it restricted to whatever jury form is used at the trial? Although these seem rather abstract questions, they are intimately involved in this whole debate. Or, at least, should be.