Schaeffer has two suggestions for how to come up with a suitable compensation package. "You either have to allow a lawsuit to be filed and let a jury decide the number, as it does in virtually every other type of case," he says. "Alternatively, you'd probably have to find a number based on the amount of time served instead of a flat number that would give the same amount to somebody that wrongly served a month as opposed to somebody that wrongly served 17 years."
The money, he says, is not merely to compensate for what the person was deprived in a paycheck. "I think if you've lost the right to have a family, to go free in the world, and you're put in a cell every night and treated like a rapist, the damages for that are worth more than not being able to go to work every day from 9 to 5."
Is the State to Blame?
Louisiana state Sen. Jay Dardenne opposes the idea of legislation to compensate people for wrongful convictions and years in prison.
"A jury believed beyond a reasonable doubt that an individual should be convicted," he says, based on the evidence available at that time. So, if a ruling is later overturned because of DNA evidence that was not previously available, this "does not suggest to me that the state was somehow wrong or at fault."
Even in cases like Graham's, where prosecutors committed misconduct, Dardenne does not think taxpayers should pay. Instead, he thinks Graham should sue the prosecutor.
"There is a civil remedy in place in Louisiana against a prosecutor who takes such reprehensible action," says Dardenne. "The wrongfully incarcerated individual has a right to go to court … and seek monetary damages," he says. "If the prosecutor acted wrongly, that's where the fault should lie."
But Scheck says suing the prosecutor is a bad idea that almost never works.
"There is a very very narrow class of cases where you can succeed," he says. Such cases are rare instances where you can prove "bad faith misconduct by a police officer or a prosecutor in the investigatory stage which led to the arrest or the indictment … but everybody else who can't fit into that very narrow category, can't pass through the eye of that needle … out of luck. That's not right."
Scheck adds, "You can't sweep these people under the rug. Because their suffering is too great. Their moral lesson is going to be heard."