08 August 2007

Paying For Mistakes

A mentally retarded man, who is a U.S. citizen with a Latino name was arrested "on charges of trespassing and spraying graffiti at an airplane junkyard in Lancaster. In April, he was sentenced to 120 days in jail, but that was reduced to 40 days. On May 11, before his sentence was up, Guzman called his family from Tijuana and told them he had been deported."

The man "who cannot read or write, spent much of the 89 days in Baja, California, on foot, avoiding human contact, eating from garbage cans and bathing in rivers," when he was found by family members searching for him.

The official response was typical:

Sheriff's officials had turned Guzman over to federal immigration agents after he apparently indicated that he was born in Mexico. U.S. Immigration and Customs Enforcement officials denied at the time that anything improper was done, issuing a statement that said it deports individuals only "when all available credible evidence suggests the person is an alien. That process was followed here and ICE has no reason to believe that it improperly removed Pedro Guzman."

On Tuesday, an immigration official reiterated the agency's position.

"We're confident our standards and procedures were followed correctly," spokeswoman Lori Haley said.

So what? Suppose that everything that the government is saying is true. Should it matter? Clearly, in a civil rights action, which requires proof of intentional misconduct, it does. Indeed, it even matters in a common law negligence suit brought against jail operators under a waiver of sovereign immunity that applies to harms negligently caused to inmates, although even that decision would be a stretch.

But, maybe the law is an ass and should be changed. The approach, in particular, that comes to mind is that of the takings clause of the 5th Amendment. It provides that:

No persons shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

When the government takes your property, the 5th Amendment affords you a right to just compensation. It doesn't matter if the taking is intentional, reckless, negligent or blameless. If the government takes it for the public good, you are entitled to compensation.

Why shouldn't that approach be broader? Why shouldn't any citizen exiled from his country be entiteld to compensation? Why shouldn't someone who is arrested or searched in a good faith mistake be entitled to compensation? Why shouldn't someone who is wrongfully convicted be entitled to compensation?

Is any valid public purpose served by allowing the government to escape liability for harms imposed negligently or despite good intentions, that deprive them of liberty which they did nothing to forfeit? Isn't an incentive for government to prevent this kind of harms sensible? And, even if viewed as a form of social insurance, isn't insurance against randomly losing your liberty at the hands of government officials despite the fact that you did nothing to deserve it, just the kind of thing that is appropriate for a social insurance program?

Most of the time, the harm is likely to be far less. Most adult Americans who are wrongfully deported could go to an embassy, call a family member to fax over some proof of citizenship, and catch the next bus home with a temporary passport in a matter of days. In cases like that, compensation would be modest. But, in a case like this one, where the harm was greater, the compensation would also be greater.

Of course, the government would not be responsible under this theory if bandits rob you, and then dump you on the other side of the Rio Grande without identification. Aid to citizens in this case would have to come from the general goodwill to expatriots fund in the State Department --- the same approach used when the Marines evacuate Americans from some third world city where war errupts.

Rather than seeing this right as a drain on the public purse, a program like this ought to be seen as a warning system calling attention to policies that don't work, so that we can make the government better. The GAO ought to regularly review cases to determine what could prevent similar cases from recurring. No system is perfect. Mistakes will be made and people will be hurt in the process. It is too much to expect a government to never make mistakes that violate people's rights. But, it is not too much to expect the government to pay for the harm it causes when this happens.

Hat Tip to Luis at Square State.

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