There is a great line dividing Americans: On the one side, and tipping the scales of justice, are those who have never been accused of a crime; on other are those accused, and their family and friends. The rule of law is supposed to serve as a sort of Charon, navigating souls across the river of despair. Many a family has awoken on a Monday to scorn those whom the press reports are criminals. These same families are often transformed by Tuesday, when the sickly finger of accusation points at a loved one.
Sometimes the two worlds collide. Nowhere is this more clear than in the case of a wrongfully convicted person. What we are prepared to do for a person whose life has been wasted behind bars because of a failure of justice is a measure of our humanity. In Wisconsin, lawmakers should hang their heads in shame. State law caps damages for a person released from prison after being convicted falsely to a measly $25,000.
In the case of Robert Lee Stinson, that will result in an award of $1,086 for each of the 23 years he spent behind bars for a crime the state now concedes he did not commit.
Stinson was convicted in 1985 of murdering a Milwaukee woman. The sole evidence linking him to the crime was bite mark evidence on the victim's body. This evidence was linked to him by the expert testimony of a forensic odontologist. But just last year, the National Academy of Science reported this sort of evidence is rarely more than junk science, or speculative garbage. Among other problems in this case: Mr. Stinson was missing a tooth that he should have had if the bite marks could even arguably be his. DNA evidence later cleared the man, as blood and saliva samples on the victim's clothing were determined not to be his. But it was not until another man confessed to the crime that Mr. Stinson was finally freed.
The state erred in convicting Mr. Stinson. When a citizen errs, a prosecutor jumps up and down and demands that the person be held accountable. Justice requires this, we say. Misconduct must be deterred; an example needs to be set. But we cannot seek justice against the state when it errs. No example can be set when the sovereign errs. This great fiction, an historic and necessary evil, gets a pass. And why is that? The doctrine of sovereign immunity prohibits suits against the state.
Just how and why sovereign immunity was smuggled into our republics is a topic for another day. I suspect it had to do with our reliance on English common law, and England's great romance with theocracy. But we have never had a James I in our soil. (He authored a work in the early 17th century on the divine right of kings.)
Most states, including Wisconsin, permit folks to request permission of the sovereign to file suit against it. This is typically done, as it is in Wisconsin, through a claims commission. Claims commissions evaluate the contentions of those who want to sue the sovereign and then give a thumbs up or down to the petitioner. In Wisconsin, claims such as Mr. Stinson's are capped at $25,000. Thus, even if the sovereign is prepared to concede error, its agents refuse to permit it to be held accountable. Mr. Stinson can recover no more than $25,000 for 23 years spent behind bars. That is simply obscene.
It is unlikely that anyone will storm the barricades on Mr. Stinson's behalf. Most folks will think he must have done something wrong. He was arrested after all. And a people numbed into humming the fundamentalist Christian camp song "Trust and Obey" as they recite the pledge of allegiance won't face the fact that sovereign. too, can be a criminal, violating the very rights we create it to defend.
The line separating those accused, whether rightly or wrongly, from the rest of society is a line most people never cross. It is very comfortable on the self-righteous side of that line. Why monsters exist on the other side of the line. Those who defend these monsters are themselves evil. The great mass of anonymous stone throwers who huddle together in anonymity draw coward's strength and courage from each stone they toss. But when a stone strikes them, they don't call on their neighbors or the state for relief: they look to a monster to defend them. The state refuses to accept responsibility for its errors, and those lawyers who stand tall for the accused are derided as scum until they become the sole and last friend of the accused.
Mr. Stinson teaches a bitter truth for those prepared to learn it. Humanity exists on both sides of the line separating those accused from the accusers. Justice requires that both sides be accountable. Why are we prepared to welcome the destruction of a man accused and convicted, whether rightly or not, while at the same time fleeing from any semblance of fairness when it is clear the state has erred? Pride is a deadly sin; especially so when the sovereign refuses to acknowledge error.
Wisconsin ought to hang its head in shame. But most likely, it won't. You see, we get the government we deserve, and the people of Wisconsin seem content to let this injustice go uncorrected. Shame on Wisconsin.