Do you recall that I wrote, on 20 November of this year, that “I had intended to post an entirely new
uncommon commentary this week, but it’s not working out as I had hoped it
would; …”? Well, now it has worked out.
Occasionally, one must endure listening
to some version of the following cliché: “In America [sic], we would rather
have 1000 guilty people [sic] go free than see a single innocent one
convicted”. In addition to the lack of
originality, there are at least two problems with this pronouncement. First, it’s almost certainly untrue. I’ve never heard of any opinion polls on the
subject, but I doubt very much that the average person in this country would
really favor a system of justice in which wrongful acquittals are 1000 times as
common as wrongful convictions. Second, the
statement implies that our justice system works so well in regard to the
principle of “presumption of innocence” that persons who are not guilty of a
crime are either never or almost never imprisoned or executed for that crime. Thanks to, however, such developments as the
application of new technologies to old cases (e.g., genetic testing on rape
victims and on their alleged rapists), we now know that wrongful conviction happens
uncomfortably often.
I used to be disquieted
by the lack of “presumption of innocence” in, for example, the French legal
system; I imagined that, were one mistakenly charged in France with having committed a crime, the likelihood of being cleared of the charge was no greater
than that of a flipped coin coming up heads instead of tails. “Presumption of innocence” made judicial
systems that are culturally English or English in derivation, such as that of the
USA, seem highly preferable. I was
partly right; “presumption of innocence” may be preferable as a principle, but we
must admit that it operates much better in theory than in practice. Having heard as many stories as I have about US
citizens finally being exonerated of crimes for which they had spent years in
prison, and of others escaping earthly penalties for crimes which they
obviously did commit (and having
learned, subsequent to the posting of my 20/11/2014 Best of Uncommon
Commentary, that it is commonly known among legal professionals that “juries
tend to ignore the law”), I no longer see any reason to conclude that US justice
is better than the French version at protecting innocents and punishing
wrongdoers. What this means is not that
we must emulate the French approach to criminal justice, but only that we ought
to concede that our own approach is overrated, and that we need to enact reforms;
in UC #57 I suggested one such reform, which would be to abolish trial-by-jury.
(This ought to be popular, since it would mean abolishing jury duty!)
