The Innocence Problem

Stuart Taylor points out that while nobody sure's exactly how many innocent people are serving time in American prisons, the number appears to run into the thousands. He argues that there are many relatively simple things -- taping interrogations, organizing lineups properly, disciplining prosecutors who are guilty of serious misconduct, etc -- we could do to reduce this.

I'll observe that in both the criminal justice and counterterrorism fields, there seems to be a tendency among policymakers to treat punishing the innocent as a kind of close second-best to punishing the guilty. And, of course, in bureaucratic terms it is -- a conviction is a conviction and a clearance is a clearance, whether or not you've got the right guy. In crime control terms, though, it's a terrible error to be wasting resources (prison space, prosecutors' and judges' time) on punishing people who aren't criminals. It's also a terrible injustice, of course, but it's not a tradeoff between justice and effective crime control -- punishing the innocent is counterproductive, just like torturing innocent people and wasting your time chasing down their "leads."

Comments

punishing the innocent is counterproductive, just like torturing innocent people and wasting your time chasing down their "leads."

One thing that is missing of many references to the Dreyfuss affair is that by putting the innocent Dreyfuss in prison, the French government thought it caught the spy it was looking for ... but in reality the real wrongdoers were still free to possible cause more damage.

So whenever anyone says "we need secret evidence to keep us safe", we should respond by referencing the Dreyfuss affair. Not just to demonstrate how secret evidence can result in an innocent person being sent to prison, but by failing to let evidence see the light of day and be subject to proper review, the flaws in the evidence are not exposed which eventually allows guilty people to continue to be free to commit more crimes!

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here seems to be a tendency among policymakers to treat punishing the innocent as a kind of close second-best to punishing the guilty.

It's deeper than that, though. It's a perversion of the doctrine of original sin. Let's face it ... the majority culture in our country is Christian, even if many of us here are not. And we all cannot help but be influenced by Christian thinking. And Christianity, even those who reject original sin per se, believes that everyone has sinned to such a grave degree that redemption is impossible (but for the sacrifice of Jesus).

Ideally, this thinking should result in a feeling of empathy for those deemed to be sinners: "sure [X] is a sinner; sure [Y] is a criminal ... but I am a sinner myself as are we all ... so I shouldn't look down upon [X] or [Y] as who am I to think I'm better than they? 'judge not lest ye be judged'". However, in practice, for too many people, the result is a lack of concern for innocence: "sure [X] might not be guilty of the crime he's convicted of committing; but the police musta had reason to arrest him; he must be guilty of something. Anyway, we're all guilty of something truly evil, so [X] just was unlucky enough to get caught at it ... and thus deserves to go to prison as we all no doubt do".

Either way, as much as the right protests about us secular and/or non-Christian types being nihilists, to me it seems that the views I've rather parodied above, especially the mean-spirited point of view of too many people (which is standard on the right, from what I can tell), really is nihilistic, isn't it?

Posted by DAS | August 13, 2007 2:53 PM

Well, it all makes sense if you analyze it from a Libertarian perspective - law enforcement is a government bureaucracy, and ultimately it will take actions that make it look most effective (convictions, regardless of guilt) while actually exacerbating the problem it is supposed to deal with (by convicting the innocent, the guilty can go free to commit more crimes, which leads to more work convicting the innocent).

It makes perfect sense if you are willing to look, with your eyes open, deep into the darkest parts of the human soul.

Oh yes...seriously.

Posted by Chuck | August 13, 2007 2:53 PM

There's a terminological problem here in talking about "the innocent" -- quite a few people are in prison for crimes they didn't commit, but a lot of them are guilty of other crimes for which they could have been imprisoned if the facts could be proved.

For example, two men grab somebody, and one kills her while the other stands lookout. The police arrest both, then play the prisoner's dilemma game with them. The killer caves in first and in return for a shorter sentence signs a confession saying he was the lookout while his partner (the real lookout) pulled the trigger.

More generally, the police and prosecutors don't often frame wholly upstanding fellows like Harrison Ford's doctor in The Fugitive. It's a lot easier to pin something on a bad guy who has gotten away with a lot over the years.

Posted by Steve Sailer | August 13, 2007 2:59 PM

punishing the innocent is counterproductive,

I'm not sure it's quite that simple. If someone gets punished for a crime, the larger public assumes that he was properly punished for the crime. So the counterproductiveness is tied to the real criminal and, I guess, people he knows and talks to about it. Which, I suspect, is one reason punishing the innocent is a second-best option.

Posted by SomeCallMeTim | August 13, 2007 3:03 PM

there seems to be a tendency among policymakers to treat punishing the innocent as a kind of close second-best to punishing the guilty.

This reminds me of a line from the judgment of the panel of Indonesian judges who convicted Corby Shappell, the rather famous case of a cute Australian surfer who was alleged to have imported drugs in her surf bag. The verdict was covered internationally.

The head of the panel, who read the judgment, prefaced his remarks by saying that he had sat on over 500 drug trials and had never acquitted because it was important to be tough on drug traffickers (!). I always thought that this was a perverse sense of deterrence: in order to dissuade *actual* drug traffickers, they were ready to convict anyone. Of course, that should have the reverse deterrent effect - if you are just as likely to be convicted of a crime whether you are innocent or not, you might was well commit the crime...

Posted by 3pointshooter | August 13, 2007 3:27 PM

With any classifier, there is always a tradeoff between "leakage" (letting the real criminal get away) and "false alarms" (convicting an innocent person of the crime). If you tune the parameters to avoid all false alarms, you will probably end up with almost 100% leakage.

So, the logic in this post is way off. The optimal parameter setting to reduce criminality probably puts a higher premium on reducing leakage than false alarms. Yes, there may be a few cases where convicting the innocent guy prevented you from getting the guilty one. But, for the most part, putting innocent people behind bars won't increase the crime rate.

The argument against convicting innocent people should be based on justice, etc.

Posted by Jim W | August 13, 2007 3:37 PM

The innocent get incarcerated, the guilty don't get rehabilitated, crime doesn't go down, the cost of the prison system skyrockets. The criminal "justice" system is the single worst thing in America today.

I agree that the problem of innocent people in jail needs to get worked out, but the problem of the prison is larger than that - they don't do any of the things they're supposed to do, with the exception of inflicting bodily pain, and that's always sorta disavowed.

Posted by DivGuy | August 13, 2007 4:05 PM

there seems to be a tendency among policymakers to treat punishing the innocent as a kind of close second-best to punishing the guilty

Seems to me that this argument is likely to be filled with straw, inasmuch as we're not given even a single example of said behavior.

Posted by Al | August 13, 2007 4:17 PM

Policy Makers? It's not just policy makers. Virtually every modern feminist forum (and most on your blogroll) claims that the rate of false allegations of rape and sexual molestation is so low that we can ignore the innocent men put into prison.

And they go further and say that we should do everything we can to put more rapists behind bars including keeping the charged from being able to confront their accusers.

Go on Harvard Trained Yglesias: put that big Harvard Brain to use and examine the studies on the false allegations of rape. Is it 2% that the feminists claim? Or is it more like 8%, 20%, 45% that other studies claim? Or examine the 2% rate, and ask yourself how that compares to Benjamin Frankin's rate of 1%.

For your enlightenment, here is an MSNBC video showing a woman accusing a cop of sexual molestation. Sadly, the cop videotaped their entire encounter.

He fondled my breasts...He caressed my vagina--I feel very very very violated."

http://youtube.com/watch?v=KgxwPU0W-Wg

Modern feminism has much more in common with authoritarian politics than with progressive liberals. I say that as a feminist since the early 70s. The sad truth is that there are many innocent men in jail due to this so called "liberal" feminism and its support from pundits like you, Matthew.

Posted by jerry | August 13, 2007 4:22 PM

You don't tape interrogations as a matter of course? Fuck.

Posted by Alex | August 13, 2007 4:26 PM

crime doesn't go down
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Really?

http://www.ojp.usdoj.gov/bjs/glance/viort.htm

Posted by Campesino | August 13, 2007 4:56 PM

Wow.

DAS: However, in practice, for too many people, the result is a lack of concern for innocence: "sure [X] might not be guilty of the crime he's convicted of committing; but the police musta had reason to arrest him; he must be guilty of something."

Sailer, moments later: There's a terminological problem here in talking about "the innocent" -- quite a few people are in prison for crimes they didn't commit, but a lot of them are guilty of other crimes for which they could have been imprisoned if the facts could be proved.

That is absolutely priceless.

Posted by Brad L | August 13, 2007 5:01 PM

The problem in both contexts is simple: all the reinforcement for the people in charge goes to who locks up the most bodies. For example, cops are judged by how many cases they clear, and prosecutors are judged by their conviction rate. Whether the people charged are actually guilty doesn't figure into these calculations. Change the reinforcers--i.e. put a premium on actually charging and convicting guilty people, and start penalizing malicious prosecutions--and you'll change the outcomes. However, this is highly unlikely to occur in the current punishment-valuing environment. I recommend Glen Loury's article on this subject.

Posted by beckya57 | August 13, 2007 5:02 PM

The single worst contributor to innocent people serving time in jail is plea bargaining. The broken-down poor have very little faith in "justice" these days, and for good reason. Plea bargaining your way into a 6 month sentence to avoid a 5 year one seems like good sense to many of them, and they're right.

We could abandon the completely insane War On Drugs, but politicians on both sides are unwilling to act rationally. This country is in the grip of an authoritarian panic and has been for decades. Collectively, we're one damn stupid nation. But then what can we expect when half of us are creationists who still think Saddam Hussein was behind 9/11?

Posted by MoeLarryAndJesus | August 13, 2007 5:13 PM

Anyone with a familiarity with stastical signal processing is aware of the problem that Jim W cites. This is why criticism of the Indonesian judge from this perspective is bogus. They don't prosecute everyone on drug trafficking charges- just the ones they think are guilty, because their bag had drugs in them or whatever. Their system does not miss very many real drug traffickers. So if you believe that stopping drug trafficking is more important than justice for the innocent, you can defend such a system.

But there is a distinction b/w increasing your false positive rate in order to avoid misses and just increasing your false positive rate. Sometimes the problem with the system is not that its overly aggressive in preventing the guilty from going free, sometimes the system is actively targetting the innocent. Figuring out where the difference is is important. And there are many things we could do that would reduce the false positive rate while have no negative impact on the miss rate. Recording interrogations and organizing lineups properly for example, would probably fall into this category.

Posted by mpowell | August 13, 2007 5:18 PM

You don't tape interrogations as a matter of course? - Alex

I was (an alternate, so I wasn't privy to the deliberations) on a jury. The defendent spoke to the police when they were investigating the allegations against the defendent. The prosecution was making a big deal out of the contradictions between the defendent's statements to the police and what he was saying, e.g., at trial.

Except, forget about taping. The police couldn't even produce a signed statement or even a transcript of what the defendent actually said! They just had the notes of the officer who spoke with the defendent (who wasn't even the guy testifying, IIRC).

The case was pretty strong against the defendent. About as strong as you could get in a sex crime allegation where it's the word of the defendent against that of the complainant (and with surveilence tape placing the two together at the time of the alleged crime). But I, for one, had my doubts. I was not quite sure if my doubts were "reasonable" or if I was just being a dirty-dippy hippy and not wanting to convict someone falsely.

It would have helped if the police actually had a transcript of the defendent's talk with the police ... either side produced some sort of "meta-evidence" regarding what you can believe from the testimony of un-reliable witnesses (the complainant was high at the time of the alleged crime: how much could someone high on pot get wrong because they were high on pot yet still be believable vs. how much would they get wrong if they were making things up).

But juries cannot ask for these things. They can only vote to send a possibly innocent person to jail (as they figure their doubts are not "reasonable") or vote to set a person they believe almost beyond a doubt free.

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for the most part, putting innocent people behind bars won't increase the crime rate. - Jim W

In cases like the one in which I was on the jury, where the issue is whether a crime occured ... having an innocent person behind bars won't increase the crime rate (at least until said person is released -- then you have a guy who may have been a law abiding citizen, but since he's now a sex offender who can't get a job or live anywhere without the community trying to drive him out, there's a good chance he'll live a life of crime, 'cause what other option does he have).

However, if it is known that a crime occured, but the issue is whodunit, then if an innocent person is behind bars, a guilty person is free to commit more crimes ... which is how we often know about such cases in the first place nu? the guilty person commits another crime ...

Posted by DAS | August 13, 2007 5:27 PM

One problem is with "classes of evidence". As DAS described, we may have a testimony of a single witness and some unreliable interrogations. Then what?

Suppose that an excellent study establishes that in 2/3 such cases the defendant is guilty. My bet is that prosecutors will take it as "beyond reasonable doubt", and juries -- well, outcomes will differ.

Another problem is that indeed, prosecution may create crimes ex nihilo, which may happen when someone is pressured to testify against another person. Something like that was described in the investigation of Henry Cisneros when his former mistress was convicted on money laundering, and the alleged crime consisted of an untruthful statement on mortgage application, so later each mortgage payment was deemed a part of an illegal transaction, a.k.a. money laundering.

On the average, excessive powers of police and prosecutors may be decreasing crime, but there is also a small question of liberty and the values we have as the society. Do we agree that Founding Fathers were a bunch of well-meaning fools and the Constitution has to be transformed, in the way it is practiced, to a more "realistic" and authoritarian model?

Posted by piotr | August 13, 2007 6:11 PM

Having done eight years in Federal prison for a crime which I freely admit I DID commit, here are my comments.

"For example, two men grab somebody, and one kills her while the other stands lookout. The police arrest both, then play the prisoner's dilemma game with them. The killer caves in first and in return for a shorter sentence signs a confession saying he was the lookout while his partner (the real lookout) pulled the trigger."

I had a cellie in close to this position. He and his partner were charged with the murder of an informant. The evidence was minimal - primarily because my cellie and his partner hadn't done the crime (so he said - and I believed him.) In fact, another set of parties had done so. They were charged apparently on the basis of a stoolie - who are notoriously unreliable.

What happened was that the Feds tried my cellie's partner first - and he walked. So then the Feds tried to salvage the case by telling my cellie that, unless he agreed to plead guilty, they would charge him with every other crime they could think of that he had done or might have done - and they would make one of them stick, thus giving him a very large sentence. So he took the deal for 12 years - instead of the 20-30 they were threatening him with.

He was already doing some state time, so that came of the 12. When he was transferred to Federal prison, he filed an appeal based on the fact that he was charged with "possessing and using" a firearm in the commission of a felony - an automatic additional five years. One of the appeal courts had ruled that if charged with "possession and use", the prosecution had to prove BOTH "possession" AND "use" - or reword the charge. My cellie won that appeal, and got five years knocked off his sentence. He got out before I did.

I had another cellie at another institution where he was charged and convicted of being a "major drug dealer" when in fact he was basically nothing more than a drugged-up loser who held stash for the real drug dealers. He was convicted based on nothing more than the testimony of one of the drug dealers who was in fact protecting one of his relatives at the expense of my cellie.

My cellie met the boss of both these guys in a holding cell. The boss admitted to my cellie that he never heard of him, only the other two guys. When my cellie's lawyer attempted to request that the boss be allowed to testify on my cellie's behalf, the judge said he didn't want to hear anything he had to say "because he's a drug dealer." This of course ignored the fact that my cellie had been convicted solely on the tainted testimony of a drug dealer with a motive to lie.

I knew another convict who had been convicted of drug possession based on a warrant alleging that he had drugs taken off him previous and tested at a lab. After his incarceration, he started researching his appeal. He discovered that 1) the warrant was for a relatives' residence but was served on the street; 2) the warrant's signature of the judge was the same handwriting as the arresting officer; 3) the lab which supposedly had tested the original drugs had no record of such a test; the officer had lied about it.

In another case I was aware of, the chemist of a group of drug dealers was being threatened with a 25-year sentence if he didn't testify against the other dealers. He refused. The other dealers all then made deals to testify against him, and got suspended or reduced sentences. The Feds justified this notion by saying the chemist was "an essential part" of the ring. So they jailed this guy who had never done anything wrong before, and let a bunch of serial drug dealers go free - just to get a conviction.

Finally, we have the case in Philadelphia where a stoolie was being paid to finger drug dealers. He fingered a house which he thought was empty because there was no furniture in it. It turned out the owner of the house had a messy divorce and lost his furniture. The cops busted down the door. The unarmed owner made the usual "suspicious move" and was shot. He lay there for half an hour without medical attention while the cops tore the house apart looking for drugs that weren't there. Finally, they realized their error.

Unknown to them, he was conscious. He heard the cops discussing whether they should finish him off in order to cover up the bad bust! The only reason they didn't agree on this plan was that there were FIVE JURISDICTIONS in on the bust and they didn't think they could keep it quiet that they had murdered an innocent civilian to cover up their mistakes!

"More generally, the police and prosecutors don't often frame wholly upstanding fellows like Harrison Ford's doctor in The Fugitive. It's a lot easier to pin something on a bad guy who has gotten away with a lot over the years."

This is true. It's also the wrong way to go about "justice".

Here's the bottom line: "justice" is a non-starter. The law enforcement system in this country is broken beyond repair. It exists to provide careers and paychecks to people whose only motivation is to push other people around. In fact, it's questionable if there ever WAS in human history a police force that was otherwise.

There are NO clean-cut "Adam-12" cops begging to "protect and serve." If anybody starts out that way, they learn otherwise quickly.

Don't even get me started on the police washouts and downsized military losers who are correctional officers in this country. Or how inmates are treated in county, state and Federal prisons - hint: Abu Ghraib is NOT an "aberration" - it is SOP (although "naked pyramids" ARE a bit unusual here in this country - I think.)

Posted by Richard Steven Hack | August 13, 2007 6:35 PM

"In cases of absolute wrongdoing, it is impossible for even the least experienced official to deviate from the iron rule of conduct. Cause and effect; effect and cause: these two facets of an absolute system corollorate with absolute precision. Two persons having committed a Category One crime, two persons will automatically suffer a Category One punishment, and the Essential Equipoise of justice will therefore be painlessly maintained. "

"It is what the scrupulous would look for," assented Chun.

"It is what they will inevitably see," replied the magistrate. "Should your leisurely footsteps chance to turn in the direction of the public execution ground on the occasion of the next general felicity, your discriminating eyes will recieve assurance that that the feet of the depraved will find no resting-place on the upright soil of Hoo-Yang."

"It is indeed a matter of rejoicing that your penetrating gaze recognised the degraded miscreants who will thus be brought to an appropriate end."

"If," the magistrate remarked profoundly, "so sublime a principle as justice should depend on so fallible a thread as a single human attribute, all feeling of security would be gone for ever. The two misbegotten harbingers of shame who attacked this hard-striving person will sooner or later meet with a fate that will be both painful and grotesque. In the meantime the wholesome moral of retribution will be inculcated in wrongdoers by two others (doubtless quite as abandoned in their various ways) demonstrating that authority does not slumber."

"It has been claimed that there is equally one law for the just and the unjust," assented Chun, "and in a certain guise --"

"Your loyal approbation nourishes the roots of our endeavour," interposed the magistrate, rewarding the speaker with a handful of melon seeds cast in his direction.

Kai Lung Unrolls His Mat, Earnest Bramah, 1928

Posted by Chrisb | August 13, 2007 8:01 PM

Matthew - I'll observe that in both the criminal justice and counterterrorism fields, there seems to be a tendency among policymakers to treat punishing the innocent as a kind of close second-best to punishing the guilty.

You should be more careful and separate out criminals from combatants in wartime. There is a need to establish guilt of common criminal defendents. There has NEVER been a need, except now in the eyes of the Modern Left, to adjudicate the "culpability" of each and every combatant.

The Muslim Jihadi is operating as a non-criminal, as his Sharia Law and the blessing of his dutifully obeyed religious leaders that he goes straight to Paradise killing infidels or such butchery wiping out past and many future sins if he survives - indicates.

Attempts to apply the "criminal court mindset" to even formalized Western military's prisoners would be a trainwreck.
Imagine in WWII having to Draft an additional 2 million Americans to staff up the legal system to ajudicate the "innocence or guilt" of enemy soldiers or whole countries full of enemy civilian leaders and officials. No "trials" and "lawyers battling over evidence" that hardcore Fascists, innocent German draftees who hate war, local Arab militias and political groups working with the Fascists, hapless Italian conscript civilians working with the Italian divisions - were GUILTY!! - of anything.

They were wisked away to internment and POW camps with far worse conditions than the Left's beloved "GITMO Freedom Fighters" have been.

And the insipid logic of "you can't hold people who are trying to kill you indefinitely without trial to prove criminal guilt!" should be obvious in hypotheticals:

What if the Germans had stalmated the Eastern Front and built up their Atlantic Wall? And WWII had gone on another 5, 10, 20 years? Europe had its hundred-year war, and at peaks of past Muslim Jihad fought a series of battles than spanned centuries. Wars are not guaranteed to be short.

At what point then, would we be morally obligated in an extended WWII to return the "innocent" German draftees, the Fascist Arab militias, the hardcore Italian leadership (and many French Vichy, too) to the enemy Armies and leadership so they could resume killing us?

You cannot apply criminal justice to dangerous combatants, as while most would seek your defeat or death if released - they are "innocent" in a criminal context under their laws and most of ours. Only a few of the dangerous enemy would qualify as "war criminals" and be worth the distraction and money to try in a military court, let alone a criminal one. And an unacceptable squandering of resources - the country needs more troops, more Arabic, Pashtun, and Chinese speakers, a State DEpartment tripled in size - not taxpayer money spent on lawyers for enemy combatants.

Best that it be left to administrative screening of combatants we don't think rise to "war criminals" but would kill us if released. And trials for American traitors working with the enemy....

Combatants and criminals are apples and oranges.

Posted by Chris Ford | August 13, 2007 8:15 PM

Chris Ford writes: "Best that it be left to administrative screening of combatants we don't think rise to "war criminals" but would kill us if released. And trials for American traitors working with the enemy....

Combatants and criminals are apples and oranges."

How did you decide they were all "combatants"?

Oh, right - you believe your Great Leader and his mouthpieces, no matter how many lies they tell you for how many years. You've been sucked in to the idea of an endless war and you've shut your critical thinking mechanism (if you ever had one) off.

Imprison and torture first and don't ask questions later! That's a hell of a way to proceed for a so-called democracy.

Posted by MoeLarryAndJesus | August 13, 2007 8:47 PM

"You cannot apply criminal justice to dangerous combatants, as while most would seek your defeat or death if released - they are "innocent" in a criminal context under their laws and most of ours. Only a few of the dangerous enemy would qualify as "war criminals" and be worth the distraction and money to try in a military court, let alone a criminal one. And an unacceptable squandering of resources - the country needs more troops, more Arabic, Pashtun, and Chinese speakers, a State DEpartment tripled in size - not taxpayer money spent on lawyers for enemy combatants."

Here you're falling into the fallacy of arrested in the war on terror = an enemy combatant = actually guilty. Many (some reliable sources arguing possibly most) of the foreigners we have picked up for being "enemy combatants" have been brought in on suspicious evidence: confessions brought out by torture, people deciding to get rid of their local rivals and enemies by telling the Americans or other governments they're terrorists (similar to what happened under Stalin), in the wrong place at the wrong time, Americans confusing different names (Mohammed is probably the most common given name in the world and there are multiple romanicizations of languages spoken primarily by Muslims, such as Arabic, Urdu, Swahili, Turkish, etc. that a non-expert would be easily confused). During the early days of the Sunni insurgency in Iraq, the adult and teen males of at least one entire family were arrested by American soldiers on suspicion of being part of or aiding the insurgency because they had pictures of the Ayatollah Khomeini in their households, which meant they were Shi'ites, not Sunnis. The effect of what you're suggesting is just letting innocent Muslims rot in jail while that is used as a recruiting tool against us.

Posted by Reality Man | August 13, 2007 8:59 PM

Unlike war, where the "innocence problem" is absolutely irrelevant to captured enemy combatants - people in areas that fall to our criminal justice system DO have a right to expect good mechanisms in place for innocence and guilt findings
(And not "innocence" as signified by judges and lawyers later agreeing that stupid "due process rulings" apply. Where the clearly guilty are "ruled" not guilty later because of process violations)

Stuart Taylor, BTW. is co-author of a widely anticipated book on the Duke Lacrosse case Until Proven Innocent - and fleshes out some of what he thinks are larger failings of the US criminal justice system. The other co-author is the Harvard-trained KC Johnson, a historian and professor who spent a year eviscerating the credibility of Durham prosecutors, cops, contractors to law enforcement, a rape examiner nurse, Duke liberal arts faculty, Duke Administration, the media, victim's advocate lawyers like Wendy Murphy, Nanct Grace...and of course the Lying Whore behind the false accusation.

My own list of reasons why America lags the effectiveness of Europe and Asia's Napoleonic system:

1. Career Prosecutors are evaluated on quality and number of convictions - not on amount and quality of justice they deliver. That leads to corners cut, rogue prosecutors, the whole plea bargain bazaar - where accused are steered to picking a "safe, minimal plea" bargain rather than risk a sentence 10-20 times worse promised if defendents bargain and lose with their right to a jury trial.

2. Juries that do not screen out the stupid and easily manipulated.

3. Career Prosecutors that have to pander to race, community wishes because they are elected.

4. War on Drugs that sweeps so many people into the system that the public expectation to careful deliberations by all law enforcement on violent felonies and serious white collar crime no longer exists.

5. Lifetime tenure judges of incompetence, laziness, biases that pollute many US Courtrooms.

6. Blacks again being their own worst enemy by demanding all violent crimes be solved by the Po'-Lice, while applauding community-wide norms that No One Should "Snitch" to the Po' - Lice...which forces law enforcement to prosecute and work hard for the convictions the community demands without witnesses - on circumstantial evidence only.

7. Unlike Napoleonic justice, American justice is predicated on an adversarial system where confrontations and lies between prosecutors, politicans, defense lawyers, "expert witnesses", prosecutors, and forensic labs hired to give the testimony the client pays for...juries misled and manipulated by lawyers paid to deceive - all are supposed to come together and deliver a quality product. A product of course whose quality is also dependent on how much money the defendent(s) has, how much taxpayer money the prosecutor and courts are willing to spend....

8. An appeals system that is far more concerned with process matters - over questions of guilt or innocence. And one that all too much believes in the inafallibility of judges and juries over exculpatory evidence.

9. An overreliance on eyewitnesses. Many who get it wrong, confuse a bystander with those doing the criminal act, or who are false accusers with a personal agenda. Like Stuart Taylor's lying whore, Crystal Mangum, in the Lacrosse case.

10. Because of other big flaws in our system, like the "no snitches! campaign in the black community, we end up with a criminal population on the street that cops, prosecutors, judges, and community leaders KNOW committed numerous crimes that lacked adequate evidence to prosecute, get them off the street, and make the public safer. The temptation with the inability of the US legal system to work properly - is to MAKE it work and nail the perps on other trumped up charges.

Posted by Chris Ford | August 13, 2007 10:08 PM

"Unlike war, where the "innocence problem" is absolutely irrelevant to captured enemy combatants - people in areas that fall to our criminal justice system DO have a right to expect good mechanisms in place for innocence and guilt findings"

Why, because you say so? We are talking about rounding up innocent Muslims because troops raised in Kansas don't know enough about Afghanistan to tell the innocent from the guilty and then robbing them of a chance to prove their innocence later. Isn't this just nativism, Americans falsely imprisoned by the state deserve justice but foreigners captured by the state can be denied that forever?

Posted by Reality Man | August 13, 2007 10:40 PM

Reality Man - Here you're falling into the fallacy of arrested in the war on terror = an enemy combatant = actually guilty.

No, I'm saying the "civilian justice mindset" of guilt or innocence as the template all war captives should be "tried and judged by a civilian court on"..

....utterly does not apply to people captured in war.

Not in any war ever fought

Contrary to the Left's beliefs, soldiers, even America's own - are technically INNOCENT. Same with civilians that the military rounds up in war because they are engaged in activities that endanger "our side's" soldiers and civilians.

Civilian scientists, secret police, reservist officers not mobilized, political leaders and just plain old enemy alien civilians present in your country or in occupied territory can be rounded up, jailed or interned in accordance with the laws of war.

And there are plenty of examples of civilians - like on Sicily being told to get guns and fight the Americans by Fascists who promised to shoot them if they didn't, and US forces chasing the Sicilian goat herders or whatever into a farm and finding 10 more civilian men there and just taking the whole bunch prisoner and held behind barbed wire until war's end because no one could spare the expense, time, effort to sort out the Fascist militia from the Sicilian peasant bystanders they were found with.
And no doubt innocent Sicilians fingered by Communists as "Nazi-collaborators" were also interned by us.
Too bad.
Innocence and guilt are not part of the reality of a war zone. Only threats, friendlies, and civilians ranging from no threat to so likely hostile and dangerous we can't risk our people by letting them run free.
You also fail to recognize that while we don't want a million dollar "Trial in US Courts" to determine if the 3 Egyptians found with Saudi AQ and Taliban in Kandahar were "guilty" instead of being the innocent college students on holiday in Afghanistan as they claim......we also don't want the expense and hassle of maintaining non-dangerous Islamists in jail for decades. That is why we use screening to rid us of the non-threats and try to foist the burden of dangerous ones off on foreign nations willing to jail their own nationals.

Again.

Dangerous suspected enemy combatants, dangerous suspected civilian criminals are apples and oranges. They require entirely different systems to best protect the public from them.

PS - My nephew in Iraq in Ramadi had nothing but respect for the bravery and valor of some cornered AQ his unit took down. "They fought like demons, even the one who must have been only 15". While they butcher enemies - civilian and military alike without mercy, they are not criminals in the classic sense, nor cowards. They are True Believers.

Posted by Chris Ford | August 13, 2007 11:10 PM

True Believers. Just like Chris Ford.

Posted by Gordon Lightfoot | August 13, 2007 11:27 PM

I'm not surprised that Chris Ford refuses to answer the point made about how many of the detainees weren't "captured" or "found with AQ" but were instead handed over to US forces in return for cash by bounty hunters. Who knows what the credentials of these bounty hunters were? No one. The Chris Fords don't care. They can't even acknowledge the questions. They're as much "True Believers" as the "AQ" are(and the pure idiocy of calling all insurgents "AQ" boggles the mind).

There are now countless thousands of Iraqis and Afghans who have been abused and/or tortured by US forces. How many of them "had it coming"? Chris Ford doesn't care. He actually doesn't think it matters. And Chris Fords are running this show, which is why we're 1) actually the ones who are providing the most arms to the insurgents, and 2) losing in a spectacular fashion.

Posted by MoeLarryAndJesus | August 13, 2007 11:30 PM

Wrongful convictions are a statistical inevitability. The only question is what percentage of them the system will have.

If you don't believe me, consider. Imagine interviewing 30 women over the course of several months, all who tell the same basic story: their significant other pushed them hard, clean off their feet, causing them to fall onto a sofa and sustain no injuries. They claim he's beaten them savagely in the past, but they didn't file charges and they've healed since then. They want him done for domestic violence.

I did that for a while. It sucked. I'm sure I initiated prosecutions against innocent people, but I'm also certain that the majority of the prosecutions were legitimate, and that I had no way of knowing for sure which ones were which. I couldn't leave all 30 women without the protection of the law, and I had no way of sorting out the maybe 2 women who made up their stories.

Got an ideological hangup that makes you convinced that 30 out of 30 were guilty? Or that 0 out of 30 were guilty? Try another scenario. 30 people come in to file charges for misdemeanor threats. They claim someone said, "I'm gonna kill you!" during a mutual verbal altercation, and that they feared for their life. If they legitimately did fear for their life, and if a reasonable person in that situation would have so feared for their life, there's a case there. If not, no case. Think you can get all 30 of them right?

Now imagine that the person they accused comes in an hour later, and tells the same story in reverse.

Its possible neither are true, one is true and one isn't, or that both are true...

If you think you can do this flawlessly, the municipal prosecutor's offices of your nation need you.

Posted by Patrick | August 14, 2007 12:31 AM

Anyone with a familiarity with stastical signal processing is aware of the problem that Jim W cites. This is why criticism of the Indonesian judge from this perspective is bogus. They don't prosecute everyone on drug trafficking charges- just the ones they think are guilty, because their bag had drugs in them or whatever.

I was not criticizing the results of the Indonesian judge, but his reasoning. It may well be that all 500 cases he adjudicated were properly decided, and that the convicted represented actual drug traffickers.

However, his reasoning is perverse. He should have convicted every person of which he has sat in judgment because the evidence warranted a conviction, not because convicting everyone tried would be a deterrent.

Obviously, my post was a sarcastic rejoinder to this bizarre logic, and was not seriously trying to claim an increased crime rate as a result. I appreciate that those tried may have(although having experienced Indonesian criminal justice first hand, I have serious doubts about this) had evidence tying them to a crime. But this is the basis upon which to justify the system, rather than a perverse reasoning that should have no rational impact on deterrence.

Posted by 3pointshooter | August 14, 2007 12:35 AM

Gee, it's almost as if locking up tons of people wasn't really about finding the best way reduce crime. Who'd ever have thought?

Posted by Antid Oto | August 14, 2007 2:13 AM

No, you completely misunderstand the prosecutor's thinking. To the prosecutor, the accused is a criminal. He might well be guilty of the particular crime charged, but he is surely guilty of something. The latter, uncomfortably, is in fact generally true. Most people convicted of crimes they did not commit were chosen as defendants because they committed previous crimes, and have the attributes, aquantencies and habits of a criminal. Not to put too fine a point on it, if you're a young black male with a previous felony conviction and no job, you're as good as guilty in the eyes of the police and prosecutors.

Posted by Matt | August 14, 2007 9:55 AM

Matt- You might want to add, "if someone with no obvious motive to lie has accused you."

I am strongly convinced that arguments about false convictions which focus heavily on high profile felonies are misguided. A false conviction in such a case is tragic, but in terms of the overall rate is likely dwarfed by the rate in misdemeanor cases, which 1) are more common, and 2) have less investigatory work.

I freely admit that I have no data to support this argument, but I am firmly convinced that the presence of a municipal mediation office brings down the false conviction rate by granting another option to prosecutors who don't want to risk denying a victim the protection of the law, but who aren't quite certain about their ability to win the case. If your only tool is a hammer, everything is a nail. Granting an additional tool helps matters.

Posted by Patrick | August 14, 2007 11:52 AM