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  1. Justice After Injustice
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  4. Exonerations: Falsely Accused Freed at Highest Rates

Under retribution, it is improper to allow guilty individuals to go unpunished. Because punishment must be deserved and follow culpable actions, it is inappropriate to deny individuals the consequences of their actions. Here again, deterrence doctrine differs from retribution, because true deterrence allows offenders whose skills are needed by the community to be spared sanctions.

Retributive punishment removes that advantage and tries to restore balance to society by validating how individuals ought to act in society. In some respects, punished individuals undergo a restricted form of rehabilitation. Punishing criminals for their crimes reminds others in society that such conduct is not appropriate for law-abiding citizens, and the offenders themselves realize they have done wrong and deserve to be punished. Of course, no punishment theory is without its critics. Many of those who criticize retribution argue that the philosophy is outdated.

As societies become more civilized, they should outgrow the need or desire for revenge.

Others note that punishing criminals just because they have acted inappropriately does not address any underlying issues that may have led to the crimes in the first place. Some offenders need treatment rather than punishment; without treatment, the cycle of crime will continue unabated. Other critics note that it is not feasible to establish a satisfactory scale of punishments for crimes.

Yet such considerations are important to retributionists, given their focus on deserved sanctions rather than punishment for its own sake. Finally, a few critics note that doing unto others what they have done unto you is not as fair as it may initially seem. The victim suffered only the injury, but the offender must suffer both the injury and the anxiety of waiting for the injury to be imposed as punishment.


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Retributive justice. Article Media. Info Print Print. Table Of Contents. Submit Feedback. Thank you for your feedback. Introduction Retribution as a philosophy Criticisms of retribution History of retribution Retribution and the death penalty. Written By: Jon'a F. See Article History. On moral grounds, the state may take responsibility for a flawed system that was unable to detect or correct for errors that led to the conviction, but the state would not necessarily be legally at fault.

Another potential perceived danger of having a legal duty to compensate for wrongful convictions is that payments may be made to undeserving individuals such as those who committed the crimes, but whose convictions were quashed as unsafe. One could narrow the eligibility criteria to compensate only the factually innocent to diminish this threat; however, doing so would exclude innocent individuals from receiving payments who have had their convictions quashed, but have yet to be acquitted for these original convictions.

The question then becomes whether it is more desirable that innocent individuals are denied compensation for their hardships, than that a guilty person receives it.

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If the answer is that it is better to compensate a person who may have committed the crime, but was found wrongfully convicted based on a defective trial or other gross miscarriage of justice, then regardless of whether the remedies are by favour or obligation, it is worth considering that reparations for wrongful conviction benefit the recipient, the government, and society. The government benefits from compensation by restoring public confidence in the fairness of the justice system, since errors are recognised and addressed; in turn, the public gains from this, by the restoration of its confidence in the fairness and adequacy of the justice system.

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Ex gratia payments as the chief compensation remedy for individuals wrongfully convicted and imprisoned in Australia have inherent challenges. As discussed in the sections above, there are limitations arising from the fact that ex gratia is discretionary, the decision-making process lacks transparency, and the outcomes are non-reviewable.

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Because of its monetary nature, it does not include provisions that allow for access to services that can assist the individual with finding housing, employment or seeking medical attention for psychological or physical injuries due to the wrongful incarceration. From the analysis of successful and unsuccessful ex gratia applications for compensation for wrongful conviction, it appears that ex gratia continues to disadvantage those who begin with limited financial resources, no access to legal assistance, or who may lack any political influence to assist with their applications and cases.

This raises issues of equity as to whether such an advantage is fair and whether it is adequate that Australian exonerees must rely on ex gratia payments as their main means to seek redress for wrongful conviction. To further compound this problem, there are enormous difficulties in securing exonerations in Australian jurisdictions. For one, the avenues to appeal are limited to one appeal to a state appellate court. After this avenue is exhausted, or in cases where fresh evidence is discovered after appeal that demonstrates innocence, a case cannot be raised with the High Court of Australia, because it is unable to hear fresh evidence discovered post-appeal.

This means that where the original conviction may have been quashed after petitions and appellate review, but the individual has not been acquitted at retrial, the wrongfully convicted person may not be eligible for ex gratia compensation when a miscarriage of justice is narrowly defined as factual innocence.

As it stands, ex gratia is a discretionary, non-obligatory act that rests in the hands of the state, typically in the hands of a single executive. Both are said to operate on moral, rather than legal grounds. This exposes an area absent of accountability or regulation within the law that is subject to personal bias and political influence.

This creates the appearance that no stone has been left unturned and that the system is operating smoothly and fairly, maintaining the status quo. If we are to understand ex gratia in these terms, this too serves to maintain the status quo, since only the cases that appear to pose the largest threat to the perceived fairness of our justice system are awarded ex gratia payments, such as those that can prove gross state misconduct or have received considerable media attention. Given the limitations of the existing remedies to redress the aftermath of wrongful conviction and the issues of equity and availability of compensation for exonerees, Australia can take steps toward improving the situation for the wrongfully convicted by: 1 creating appropriate compensation legislation that addresses economic and non-economic loss as a result of the wrongful conviction; 2 increasing opportunities for exoneration by revising the appellate review process to accommodate situations where fresh evidence is discovered post-appeal; and 3 establishing an independent review commission that has the investigative power and resources to identify wrongful convictions and conduct post-exoneration reviews of cases.

This nuanced approach would have the potential to identify new cases, address equity issues regarding access to post-exoneration services, and handle the varied needs of the wrongfully convicted as they attempt to reintegrate into society. Rather than look to discretionary acts as the principal means by which an individual can seek recompense, Australia may be in the position to formulate indemnity legislation that creates a right to compensation. As some have suggested, a comprehensive model can include monetary payments made either in a lump sum, or distributed over time, that would assist with any loss of income experienced while in prison and would provide financial support for exonerees and their families as they transition back to society and seek employment.

Australia is currently in a good position to provide an integrated model of compensation with its problem-solving courts for family violence, drug offences, and offenders with mental health issues.

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Once a person has been convicted at trial and his or her conviction is upheld on appeal, that person has exhausted the legal right to further appeal, even if it is based on fresh evidence such as DNA evidence. In South Australia, in response to these criticisms, the government recently enacted the Statutes Amendment Appeals Act that implemented a new right of appeal.

If the statute is found to be adequate, other states and territories across Australia may consider adopting similar reforms. This will have a carryover effect for those exonerees who wish to seek compensation for wrongful conviction, as once acquitted and exonerated from their crimes on subsequent appeal, they will be eligible for compensation in the form of ex gratia payments and under any compensation legislation created thereafter.

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Such a system has been advocated for Australia, which would complement the work of existing innocence projects [] through its wider review of potential wrongful convictions and miscarriages of justice. In the end, the South Australian government opted not to establish such a commission and instead implemented the new right to appeal, discussed above. This improves the situation for wrongfully convicted individuals seeking legal recourse, however, the establishment of state, territory or a national CCRC would only work to further complement this step forward.

More cases of miscarriages of justice would be identified through its extensive investigative powers making it easier for wrongfully convicted individuals to be acquitted and exonerated, and in turn become candidates for compensation. There would also be the opportunity to conduct post-exoneration examinations [] to better understand the causes and correlates of wrongful conviction in Australia and the needs of exonerees post-exoneration, in order to prevent future miscarriages of justice and effectively respond to their aftermath.

The purpose of this article was to evaluate the adequacy of the post-exoneration remedies in place in Australia to assist individuals to cope with the aftermath of wrongful conviction and to successfully reintegrate them back into society after imprisonment. Ex gratia payments as the chief form of reparation for exonerees are limited and pose challenges due to the fact that they are monetary awards, highly discretionary, non-transparent, non-reviewable, and not automatically allocated to those who apply.

This creates an uneven distribution of awards that tend to advantage individuals with social, political, and monetary resources who are more likely to receive payments than those with limited resources.

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Ex gratia compensation gives the appearance that errors of justice are rare and therefore do not require indemnity legislation. Australia should endeavour to adopt comprehensive indemnity legislation for wrongful convictions where the state acknowledges its role in contributing to the convictions and fulfils its moral obligation to address the aftermath.

Since compensation legislation alone cannot fully address issues of equity and given the extreme difficulties in securing an exoneration in Australian jurisdictions, it is recommended that a nuanced approach that reforms the post-appeal review process at the state and territory level be established across the country, and serious consideration be paid to the establishment of a CCRC or similar agency.

In this way, more cases of miscarriages of justice may be identified and the wrongfully convicted will receive systematic and meaningful post-exoneration redress. The author wishes to thank the University of New South Wales Law Journal editor and reviewers for their insightful comments on the manuscript that in every way strengthened the scholarship.

She also wishes to extend her gratitude to the editorial team at the University of New South Wales Law Journal for their assistance with the manuscript in its final stages.

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Email: r. Table 1, below, lists individuals in Australia exonerated between and The section for compensation for wrongful conviction applies if:. They demonstrate that in the United Kingdom, there has been a decline in the number of applications received and approved for compensation for miscarriages after the abolition of the ex gratia scheme in and the increased subsequent reliance on the Criminal Justice Act UK c 33, s , that is based on the ICCPR art 14 6. As they discuss, another equally valid intended purpose of the legislation is not to compensate individuals who have been imprisoned for crimes they did commit.

The difficulty with including quashed sentences as a miscarriage of justice is that a quashed sentence does not necessarily mean that the person did not commit the crime. See also Dioso-Villa, above n 10, —8 discussing compensation remedies for the wrongfully convicted in Australia.

Exonerations: Falsely Accused Freed at Highest Rates

See also Sheehy, above n 8, —1 outlining what is needed to file a civil litigation suit for wrongful conviction and stating its rarity due to the stringency of the requirements. However, it must be noted that he later accepted the amount originally offered by the Attorney-General. See also Lonergan, above n 13, —8 discussing how financial compensation can be structured in a way that can achieve restorative means for exonerees, such as making additional payments for reintegration expenses incurred between their release from prison and their receipt of the award or altering the structure and delivery of the compensation such that it is dispensed in instalments over several years to ensure a steady income for the exoneree.

For this reason, it is the most appropriate response for groups of people affected by a common set of circumstances and for unexpected events. New evidence that the victim was still alive when Condren was in police custody supported his appeal, however, there was no evidence of gross state misconduct, much media attention on the case or any political support for his exoneration: see Dioso-Villa, above n Even in instances where guidelines are in place, they explicitly state that an award is still not guaranteed and that the decision is discretionary.

Eg, NSW frames them as principles for state officials to consider in the decision-making process: Justice Legal, above n The analysis of the successful ex gratia cases revealed that there is little consistency and predictability in the amount of payments allocated to exonerees. The length of time an individual spent in prison did not correspond with the amount of compensation they received through ex gratia payments.