Saving the Innocent

Paul Compos, writing at The New Republic, celebrates “The American Justice System at Its Best“:

[I]t’s reasonable to argue that the acquittal of Casey Anthony … represent[s] … the system working as it should. But accepting that argument requires acknowledging deep imperfections that our legal system must tolerate, even when it does exactly what it’s supposed to do.

The most disturbing of these inevitable imperfections is a product of our supposed commitment to the principle that we prefer a large number—whether it’s 10, 50, or 100, the precise number is never clearly stated—of guilty people going free to the conviction of an innocent defendant. That is the practical significance of requiring the state to prove guilt “beyond a reasonable doubt”—a standard that, interestingly, the system always avoids defining in any but the most general, non-statistical terms….

[In Anthony’s case] The state proved beyond a reasonable doubt that a two-year-old child was murdered, and that her mother was, at the least, a deeply irresponsible parent with a propensity to lie to authorities. The prosecution also demonstrated, in my view, that it is far more likely than not that Anthony committed the crime. But I also believe the jury’s verdict was correct….

The case against Anthony was largely circumstantial, buttressed by arguably—yet only arguably—strong forensic evidence. But the prosecution was hampered by its inability to provide a compelling narrative explaining either how Caylee Anthony was killed or why her mother purportedly murdered her. This failure was not, as far as we know, a product of prosecutorial incompetence. The hard truth is that it is extremely difficult to successfully prosecute a murder under these kinds of circumstances—and the harder truth is that we are supposedly committed to the principle that this is, on the whole, a good thing.

Or is it? Compos refers to the dictum of the noted English jurist, William Blackstone:

Better that ten guilty persons escape than that one innocent suffer.

“n” — the number of guilty persons — has increased since the late 1700s, when Blackstone wrote. Alexander “Sasha” Volokh offers some useful perspective:

Charles Dickens generously endorsed a value of n = “hundreds” for capital cases, and not just “that hundreds of guilty persons should escape,” but that they should escape “scot-free.” 99 Dickens was, in fact, so generous that hundreds of guilty persons escaping scot-free was not only better than one innocent person suffering — it was even better “than that the possibility of any innocent man or woman having been sacrificed, should present itself, with the least appearance of reason, to the minds of any class of men!” 100….

Of course, such blithe invocation could easily lead too far down the road to “inconsiderate folly” and “pestiferous nonsense.” As one author noted, there is “nothing so dangerous as a maxim”: 107

Better that any number of savings-banks be robbed than that one innocent person be condemned as a burglar! Better that any number of innocent men, women, and children should be waylaid, robbed, ravished, and murdered by wicked, wilful, and depraved malefactors, than that one innocent person should be convicted and punished for the perpetration of one of this infinite multitude of crimes, by an intelligent and well-meaning though mistaken court and jury! Better any amount of crime than one mistake in well-meant endeavors to suppress or prevent it! 108….

Jeremy Bentham, founder of utilitarianism, warned against the warm fuzzy feeling that comes from large values of n:

We must be on guard against those sentimental exaggerations which tend to give crime impunity, under the pretext of insuring the safety of innocence. Public applause has been, so to speak, set up to auction. At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fix the number ten; a third made this ten a hundred, and a fourth made it a thousand. All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused person to be condemned, unless evidence amount to mathematical or absolute certainty. According to this maxim, nobody ought to be punished, lest an innocent man be punished. 128 ….

James Fitzjames Stephen suggested that Blackstone’s maxim

resembles a suggestion that soldiers should be armed with bad guns because it is better that they should miss ten enemies than that they should hit one friend. . . . Everything depends on what the guilty men have been doing, and something depends on the way in which the innocent man came to be suspected. 134….

The story is told of a Chinese law professor, who was listening to a British lawyer explain that Britons were so enlightened, they believed it was better that ninety-nine guilty men go free than that one innocent man be executed. The Chinese professor thought for a second and asked, “Better for whom?” 238

That is the question: Better for whom? It is better for the guilty, who may claim more victims, but it certainly is not better for those new victims.

Politics and Prosperity

“Government is a disease masquerading as its own cure.”

Saving the Innocent

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