`Tort reform' discounts value of stolen freedom

January 04, 2002|By Steven Lubet

CHICAGO - This is a parable about "tort reform," although it begins with a depressing story about the criminal justice system.

Nearly 15 years ago, in 1986, four teen-agers were arrested in the rape and murder of a Chicago medical student. They insisted they were innocent, but all four were eventually 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 might have ended there. But these guys persevered, filing dozens of legal motions and writing countless letters to anyone who might listen. They had no luck for 14 years, until attorney Kathleen Zellner took an interest in their case.

After a year of investigation, having spent $200,000 of her own money, Ms. Zellner was able to establish that the convictions were more than just a tragic mistake - they had been obtained through perjured testimony, false evidence and contrived confessions.

The semen analysis was exposed as a "scientific fraud." Key witnesses admitted they lied on the stand. The confessions extracted by the police were 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 does not begin to give back 15 years to innocent men. It's no surprise that the four 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 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 Texas governor - focus on capping attorney's fees, eliminating punitive damages and restricting so-called "noneconomic damages" (which include pain and suffering and loss of companionship).

Some of these ideas sound pretty good at first. Lawyers' contingency fees are a perennial target. And the very concept of "noneconomic 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 attorney's fees and noneconomic damages are essential to full compensation and complete justice. Consider what would happen if the logic of tort reform were applied, say, to civil rights cases.

When Ms. Zellner took on the 1986 murder case there was no guarantee that 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 that 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?

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 teen-ager.

From that inadequate amount, they would then have to subtract taxes, expenses and even the rent they didn't pay while they were in jail. That's right, in the world of tort reform, prison room and board would be treated as substitute income.

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 noneconomic damage, but the fact is that the harm was real. Sure, it's hard to put a price on that sort of injury, but no one ever said that justice is supposed to be easy.

Tort reform, in any sort of case, ultimately rests on the cold-hearted assumption that the value of a person's life is chiefly determined by economic transactions, and that less tangible qualities - such as freedom or friendship or simple happiness - are practically worthless.

Steven Lubet, a professor of law at Northwestern University, worked briefly on a death penalty case with Ms. Zellner in 1992.

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