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Justice
is neither easy nor easy to count
12/28/2001
By STEVEN
LUBET
Courtesy of the Dallas Morning News
This is a parable about tort reform,
although it begins with a depressing story
about the criminal justice system.
Nearly 15 years ago, four teenagers were
arrested for the rape and murder of a
University of Chicago medical student. They
insisted they were innocent, but all four
eventually were convicted, and three of them
were sentenced to life in prison. The most
damning evidence was presented by a Chicago
police crime analyst who swore that semen
taken from the victim's body could have come
from three of the defendants.
The story easily might have ended there –
prisons everywhere are filled with young men
who claim innocence. But these guys
persevered, filing dozens of legal motions and
writing countless letters to anyone who might
listen. Still, they sat in prison for 14 years
until attorney Kathleen Zellner took an
interest in their case.
After a year of investigation and $200,000 of
her own funds, Ms. Zellner was able to
establish that the convictions were more than
just a tragic mistake – they had been
obtained through false evidence, perjured
testimony, and contrived confessions. The
semen analysis was exposed as a
"scientific fraud." Key witnesses
admitted they lied on the stand. And the
confessions extracted by the police were shown
to be coerced.
The injustice was so shocking that Chicago
Mayor Richard Daley – who was the chief
county prosecutor at the time of the trial –
apologized to the men and their families.
But an apology doesn't begin to give back 15
years to an innocent man who was forced to
spend half of his life behind bars. It should
come as no surprise that the four men now are
planning to file a civil rights lawsuit. And
no decent person would begrudge them full
compensation for the brutality they endured in
prison.
Which brings us to the subject of tort reform.
Led by the insurance lobby and its supporters
in Congress, the tort reform campaign attempts
to make radical changes in the civil justice
system by drastically reducing the recoveries
that can be obtained in injury cases. Most of
the proposals – including several that were
championed by President Bush when he was
governor of Texas – focus on capping
attorneys' fees, eliminating punitive damages,
and restricting "non-economic
damages" (which include pain and
suffering and loss of companionship).
Some of those ideas sound pretty good at
first. Lawyers' contingency fees are a
perennial target. And the very concept of
"non-economic damages" sounds
insubstantial, as opposed to real damages such
as hospital bills and lost income.
But when we look at actual cases, it turns out
that attorneys' fees and non-economic damages
are essential to full compensation and
complete justice. Consider what would happen
if the logic of tort reform were applied to
civil rights cases.
When Ms. Zellner took on the 1986 murder case,
there was no guarantee she would win the
release of her clients. They had no money to
pay her or to finance the expensive, but
necessary, research and investigation. Of
course, Ms. Zellner was motivated by her
ideals and the opportunity to free innocent
men. But she also knew she could bring a
successful lawsuit – and collect a sizable
fee – if she could prove her clients'
innocence. Without that prospect, how many
lawyers would be willing or able to devote
years of their time, and hundreds of thousands
of dollars, to the cases of (wrongfully)
convicted murderers?
And what would happen if Ms. Zellner's clients
were restricted to economic damages, with
limited recovery for pain and suffering or
loss of companionship? Their
"economic" compensation for 15 years
in prison would be the value of lost wages –
which would be pretty trivial in the case of
an unemployed teenager from Cabrini-Green.
Obviously, any fair system of justice would
allow these men to be fully compensated for
years of misery behind bars. Call it pain and
suffering, call it loss of companionship, call
it non-economic damage, but the fact is that
the harm was real. Sure, it is hard to put a
price on that sort of injury, but no one ever
said justice is supposed to be easy (or easy
to count).
Tort reform, in any sort of case, ultimately
rests on the coldhearted assumption that the
value of a person's life is determined
primarily by economic transactions and that
less tangible qualities – such as freedom or
friendship or simple happiness – are
practically worthless.
Steven Lubet is a professor of law at
Northwestern University.
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