What We Owe the Innocent
Every year, in the name of public safety, countless innocent people are lawfully stopped, arrested, prosecuted, and/or punished—and then let go. Even without government misconduct, it is inevitable that innocents will suffer in the criminal process because the state must rely on evidentiary standards such as reasonable suspicion, probable cause, and beyond a reasonable doubt. Each standard tolerates error, and no amount of reform can eliminate it. If any criminal law and punishment is justifiable, then so too must be some harm to innocents.
Yet, aside from limited schemes for the wrongfully convicted, the law fails to acknowledge the harms suffered by innocent people caught up in the criminal process. We tend to assume that if no law is broken, no remedy is owed. This Article challenges that assumption. Even when state action is justified, it can infringe the rights of the innocent or impose burdens that should be fairly shared. As a matter of justice, innocent people lawfully harmed by the criminal process—from stop to sentence—should be compensated.
Redress is also feasible: Existing mechanisms can be adapted, and new ones piloted, such as on-the-spot payments for those released after pedestrian stops. Compensation is not an act of grace. It is a debt we owe the innocent.