You Can't Have Just One

There's a phrase repeated over and over by civil libertarian and ACLU types and often attributed to either Justice William O. Douglas or Justice Louis Brandeis:

"Better 100 guilty parties go free than one innocent person be convicted."

I found the original reference is Blackstone and the figure is 10, not 100, but the point is the same. If the justice system is to err, it must err on the side of the criminal defendant.

I once wrote a book on crime and after hearing this phrase for about the 20th time, I came to one conclusion: Whoever said it wasn't planning on living in the same neighborhood with those 10 or 100 guilty criminals.
William Tucker. The Obama Watch: "Better a Hundred Terrorists Go Free…" The American Spectator

There's also another conclusion one can come to: Whoever said it wasn't all that thrilled with the idea of being the one innocent person convicted of a crime.

Mr. Tucker goes on at length about the downsides of people whom others understand are criminals going free. He references drug dealers in poor neighborhoods in New York and Blackwater guards in Iraq, in the service of pointing out the lack of respect that people have for the justice system. But outside of a single statement, "People are still convicted of crimes -- often on the unfortunate tendency of juries to believe eyewitness identification, even though it is without question the most unreliable form of evidence," the idea people are erroneously convicted is never actually addressed or even alluded to. I find it difficult to credit that poor New Yorkers and Iraqis have no experience with the idea that innocent people have been picked up by the authorities, jailed, tried and even convicted, while the real criminals pass them on the streets every day.

The fact of the matter is that the justice system isn't consistently allowing 100 or even 10 known criminals at a pop to go free in order that there are no innocent people behind bars. We all know that there are innocent people that have spent years, even decades in jail, and there is the distinct possibility that Texas may even have sent an innocent man to the death chamber. While I wouldn't be able to pick Mr. Tucker out of a lineup, I suspect that he doesn't live in a poor neighborhood of New York, in Iraq or any other locale where being sent to jail or prison for something that you haven't done is actually a concern.

While our reaction to "better that ten guilty persons escape than that one innocent suffer," might very well be "Better for whom?" we have to understand that our current legal system is actually incapable of dicing things this finely. "Just convict all the guilty and acquit all the innocent," is a nice thing to say, but if it were really this easy, our legal system would be vastly less complicated than it actually it. The presumption of innocence and the rights of defendants come from a long history of abuses, intentional and otherwise, of the right and privilege of meting out justice. While there are people who still have faith that "the security of the innocent may be complete, without favouring the impunity of crime," as Jeremy Bentham put it, I hold no such understanding. Given that any justice system is a fallible human institution, it's going to be rife with errors. The innocent (at least of the crime for which they were convicted) rub shoulders with the guilty behind bars, while in our neighborhoods, those who have beaten the rap live alongside law-abiding citizens. The reading of Blackstone's maxim as "if the justice system is to err, it must err on the side of the criminal defendant" is flawed in that the system is simply incapable of determining in whose favor is it going to err - because if it were capable, it could also eradicate the errors in the first place. So the system is never going to be able to eradicate one or the other circumstance without consequences, so we're left to judge the relative merits and decide on those.

In other words, it's not about volunteering to live in the same neighborhood those 10 guilty criminals OR be the 1 innocent person who goes to jail along with them. As it stands, one could be plucked from from one's home to a lifetime of prison AND have 10 guilty neighbors snicker at them behind their hands. Plenty of people are already in that position, and plenty more will follow them, willingly or not. We shouldn't rush to consider them acceptable sacrifices of our own desire to pretend that only the risks that trouble us are important.