18 December 2014
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!)