Why?

"[O]ne would much rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be condemned and suffer capitally."ⁱ

“Better that ten guilty persons escape than that one innocent suffer.”ⁱⁱ

Both of the views cited, and many like them, form the common wisdom by which we all live. The idea is intuitive, and we all accept it. Even assuming the death penalty is not an issue, we are repelled by the idea that an innocent person might be incarcerated for murder or any other crime.ⁱⁱⁱ

But why is that the case?

Surely no one would want to be punished for something he hasn't done, and we are a society of individuals with rights. We would not want to trample on the rights of any of our citizens. But we are a society, and however important the individual may be, our first concern must be for the good of all. The greatest good for the greatest number. So said Jeremy Bentham, and such was the view of Utilitarianism. It's a philosophy that places the good of the many over that of the one.

With that idea in mind, therefore, it might be advisable to rethink our approach to the penal code and its enforcement. Although we may feel that the prison system will rehabilitate those who pass through it, statistics suggest otherwise. A report published by the United States Office of Justice Programs, Bureau of Justice Statistics,^iv cites a study demonstrating a 67.5% recidivism rate for criminals released in 1994.^v The study compared that rate to a prior determination, in 1983, and noted a 5% increase in that time. The definition of “recidivism” used was rearrest^vi within 3 years, so the reconviction rate was lower – 46.9% in 1994 and 46.8% in 1983. But we learn from this that nearly half of those released from prison were reconvicted within 3 years.

There are no separate figures for murder, however (“only”) 41.9% of “violent offenders” who had been released in 1994 were reconvicted.^vii It is likely that there were relatively few murderers in that group, which would make it difficult to get an accurate statistic specific to that crime, but it is also likely that some of the murderers who were released killed again. Chances are that they, like so many of the other members of the “violent offenders” group, renewed their previous behavior.

And that makes it important to make an important determination: do more deaths occur at the hands of the State (rightly or wrongly), or of convicted murderers? If the latter predominates, our handwringing over mistaken convictions must be rethought. Saving a murderer from punishment when his case is “tainted” may be viewed as a victory by some, but not by the family of one killed by him after he is released. And not by his victim either.

This is not to suggest that prosecutorial misconduct should not be pursued vigorously^viii or that we should not review possible miscarriages using the latest technological means available. Nor do I suggest that we not give consideration to outlawing the death penalty, but our national guilt complex may be unwarranted. Limiting the number of cases that are dropped or bargained down, and those overturned because of “technicalities,”^ix may prove to be beneficial to “the greater number.” The conviction of any innocent is a stain on society – and mechanisms should be put in place to bring them to a minimum or, if possible, eliminate them entirely – but the victimization of an innocent citizen is also a stain – especially if caused by a system more intent on protecting the rights of the accused than the rest of its members.

The justice system is not perfect. But it's better and more honest than the majority of those who suffer at its hands. However cruel it may seem when we discover that someone was wrongly imprisoned, it is heartening to know that fewer crimes – and that includes murder – occurred because that system prevented them. Those who did not suffer for that reason, and, therefore, aren't aware that they have been spared the trauma or death that might have been their fate, should keep that possibility in mind when they protest what they see as an unjust system.

Protecting the rights of the innocent on the street may not be more important than securing those of the one who is arrested, but ignoring them calls into question the justification of society itself.

Next episode:  “Social Socialism” – Equality above all.

I         De Laudibus Legum Angliae (c. 1470), Sir John Fortescue

ii           Sir William Blackstone (1765)

iii       While the first refers quite specifically to capital crimes and punishment, the second seems to include all offences and their penalties.

iv        See http://www.bjs.gov/content/reentry/recidivism.cfm

v         Some had served out their sentences and some were paroled.

vi        Which is, of course, not proof of guilt.

vii       It had been 39.9% in 1983.

viii     Perhaps a parallel panel should review all cases of murder that resulted in a conviction. Perhaps such a procedure should not be limited to instances of murder.

ix       The distinction between a constitutional protection and a technicality should be reconsidered, and greater reliance placed on judges and juries to decide when evidence is pertinent, irrespective of the manner in which it was obtained, and those who use improper means to obtain evidence (torture, for example) should be punished for their deeds. If that is done publicly and with severe enough penalties, the goals of the Constitution can be achieved without releasing dangerous prisoners and placing citizens at risk.