Punishing the Innocent and Our Criminal Justice System

I agree with just about every word of Matt Yglesias' post on innocence and the death penalty. We shouldn't execute anyone, including those guilty of the worst offenses known to man, and we shouldn't even be imprisoning innocent people. But I think there's a line in that post that hints at something much bigger and deeply interesting, and disgusting:

The prevailing wisdom seems to be that underfunding public defender officers is somehow “tough on crime” as if railroading innocent people is a close substitute for punishing guilty ones.

Think about that for a minute, because I think it's true. A lot of people in this country, and especially those on the right, do seem to think that railroading innocent people is a close substitute for punishing guilty ones. This manifests itself in all sorts of ways beyond underfunding the legal aid system, as well as the rest of the justice system: law & order conservatives oppose efforts to empower the defense side of our adversarial system, despite the fact that the premise of the adversarial system is that two teams roughly equal in strength and each dedicated to proving their side right will ultimately discover the truth by seeing which team wins. (In practice we make prosecutors' offices stronger than the defense usually is, but also try to make it less committed to winning and more committed to truth, but still.) Reducing the power of the defense to make its case gets you lots of innocent people convicted. And I claim that conservatives who, let's say, don't care much about the horror of punishing the innocent per se should still want to avoid convicting lots of innocent people. Furthermore, I claim that the fact that they don't tells you a lot about their underlying view of what the criminal justice system is and what it does and what it should do, none of it pretty.



We can see why law-and-order conservatives should dislike convicting the innocent by looking at the case of Troy Davis. The basic argument that he's innocent is that the case was built almost entirely around eyewitness testimony, and seven of nine eyewitnesses have recanted. That's the case for his innocence, and that's why a liberal criminal-hugger like me shouldn't want to see him convicted. But the facts go further: one of the two witnesses who hasn't yet recanted was also an original suspect in the case! And many of the witnesses who have recanted have, in fact, implicated that guy as they withdrew their accusations against Davis. It seems much more likely that that dude, whatever his name is, is the actual murderer than that Troy Davis is. But guess what? We're never, ever, ever going to be able to try to bring that guy to justice. If we try to, he can just stand up in court and say, hey wait a minute, didn't the state already kill someone for this crime? And the thing is, there is essentially no way that strategy would not succeed. So by executing Troy Davis, not only have we killed an innocent man but we've also thrown away forever our chance to get actual justice for this murder victim. And conservatives are supposed to dislike letting murderers walk free.

So, let's run down the list of possible justifications for a criminal justice system, and see whether this odd conservative reluctance to embrace the logic of the above paragraph fits with each of them. One possibility is justice, but as I showed above it's a big net loss to justice. Even if the only side of justice you care about is the "punishing the guilty" part, and not the "not punishing the innocent" part, punishing the innocent is still damaging to the cause of justice. So these "punish the innocent!" types aren't about justice.

How about the idea that the justice system should serve to rehabilitate offenders? Well, of course that's absurd, conservatives hate that idea, but let's just consider it for completeness. Okay, it's still absurd. We're still missing our chance to catch the guilty party, even if we want to rehabilitate him instead of punishing him. Moreover, we can't possibly be "rehabilitating" the innocent person, because he wasn't a criminal to begin with! You can't fix someone's criminal tendencies when they don't have those criminal tendencies. What you can do, and what the American system does a fair amount of because we totally botch prison conditions, is turn people who don't have criminal tendencies into people who do. Again, it's a giant absurd failure from the rehabilitation standpoint.

Maybe the point is deterrence. Sure, in any one case we lose out by punishing the innocent, my hypothetical conservative might say, but it's important for the overall system to tolerate a lot of innocent-punishing. Otherwise we would just be letting too many guilty people go, and then the incentives of deterrence wouldn't apply as strongly. But this argument is logically flawed from top to bottom. The way we typically phrase deterrence, we want EV(p) > u(c), where EV means "expected value" or "average probabilistic value," p is the level of punishment, u is the criminal's utility function, and c is the crime. To restate in English, we want the amount of punishment the potential criminal can expect, on average, as a result of their crime to outweigh the benefit they reap from the crime. The theory is, if that's the case, they won't commit the crime. But the above equation isn't quite accurate. It should really look like this:

EVG(p) - EVI(p) > u(c)

where the subscripts "G" and "I" mean, respectively, in the case where you're guilty or in the case where you're innocent. So the difference between the average punishment I can expect if I'm guilty and the average punishment I can expect if I'm innocent is what must outweigh the benefits of the crime, because this difference is the extra punishment I'm inviting if I commit the crime. Increasing the amount of punishment we dole out to innocent people will reduce the left-hand side of this equation, thereby reducing the deterrent effect. 

It goes further than that, though. The minds of criminals are often not entirely rational. People have a tendency to believe that they are clever enough to get away with things. But now we're proposing to make the whole system less acquittal-prone; what should that do? Well, it should make the criminal think that if they get caught, if they get arrested, they're less likely to avoid punishment. But I doubt that very many people commit a crime thinking, "well, I might get caught, but there's a decent chance I'll be able to work out an acquittal!" It should also make the criminal think that there's a greater chance that the police will mistakenly catch someone else, and instead of letting that person successfully challenge the wrong accusation will just railroad them into prison. That's a win for the criminal! Taking it a step further, they might even start to think that they can commit the crime, and then frame someone for it. Then they can just sit back and laugh while the person they're framing keeps crying out "no, I'm innocent! I'm being framed, don't you see?" and the police and the courts just don't listen. Again, a win for the criminal. Now, maybe neither of these possibilities will actually make as much of a difference in the average punishment your average crime-committer receives, but again, we're talking about people who tend to have an outsized view of their own ability to play the system in one way or another. I don't think an anti-acquittal system does anything to bolster the deterrent effect of punitive criminal sanctions; if anything it weakens it. So conservatives who like punishing the innocent aren't thinking about deterrence.

What's left? It's not justice, it's not rehabilitation, and it's not deterrence. Nor is it simply the desire to keep dangerous criminals off the streets, since again every time we imprison an innocent person we're missing an opportunity to lock up the actual dangerous criminal. Perhaps if you really only care about locking up dangerous criminals you could argue for a system where, when a violent crime, say, is committed, we just lock up anyone even remotely suspected of the crime and throw away the key. That would accomplish the goal, at the cost of imprisoning lots of innocent people, but I don't think very many people really want that system. If we're only going to imprison one person, guilty or innocent, per actual criminal, then making more of them innocent doesn't help keep the bad guys locked away.

So all we're left with is vengeance. Somebody must pay. A horrific crime has been committed. Good, virtuous people have suffered. A cop's been killed. A woman's been violently raped. A young child has been raped. A community's been terrorized. And someone must pay, not to make the streets safer or to send a message to future criminals or for any other reason, but just because pain and suffering must be paid back, with interest. But here's the thing about vengeance: it doesn't actually matter all that much if the person you take vengeance against is actually the person who wronged you. For all of the other reasons it does, but not for vengeance itself. If you, the wronged parties, believe that vengeance has been done, that's all that matters. Vengeance is on your behalf, after all; it's about taking the hurt that's been done to you and visiting it upon someone else, someone who (you believe) deserves it. Now sure, it's not as good to take vengeance upon the wrong person. But it is, as Matt notes, a close substitute, which punishing the innocent is not if we have any of the more benign motives that I've run through above. As long as there's someone you can decide to believe deserves your revenge, and then you exact that revenge, you're satisfied.

What doesn't work, though, is if a bunch of liberal, soft-on-crime tree-hugging bleeding-heart big-city lawyers come to town and tell you that no, actually, this person is innocent. They're trying to deny your right to see justice done, but it's not the kind of justice I mentioned above, it's retributive justice. Not the justice of the state, the justice of the (angry) victim. We've got someone perfectly good right in front of us, who seems like they did it, it's the kind of person who would do something like that, and these lawyers want to give them all sorts of rights, and protections? And then they come around after we've followed their rules and procedures and this person, who is so obviously guilty and ripe for the punishing, has still been found guilty, and now they want to say that's not enough? That we're supposed to change our minds? Just take revenge on no one?

Of course, that was kind of a caricature. I doubt very many people are thinking along those lines consciously, but I do think that it's only by assuming that people think the criminal justice system is and should be in the revenge business, and not the justice business and not the rehabilitation business and not the deterrence business and not even the plain old locking-up-violent-criminals business, that we can explain the desire to punish the innocent. And that doesn't say anything very nice about these "law and order" conservatives. It's not about law, or order: it's about blood vengeance. And that's not a legitimate goal of public policy, at least not in my political philosophy.