It’s been quite a while since there was any life at Eric Davis’ blog, Sustained, which, if I recall correctly, went dormant right about the time Eric and his former associate, Jackie Carpenter, left private practice to join the staff of Alex Bunin’s newly created Harris County Public Defenders office.
He’s back, and brought with him his anecdotal takeaway from his undergrad teaching gig in criminal law at University of Houston.
During one of our class discussions about wrongful convictions I presented the question, “What do you fear the most, the guilty going free or the innocent being convicted?” I think the question surprised them because there was a long silence before people started to answer. But the answers came…. and they came in bunches. The majority of the students said that they feared the guilty going free the most.
Now that’s just one class at one college, certainly not an empirical study of the attitude of college students toward a fundamental tenet of American criminal jurisprudence, that it is better that “N” guilty men go free than one innocent man be convicted. Let’s make a wild guess that the question would receive a different response if it was asked at a different college, say Oberlin.
Or maybe not? While it would make sense that the historical platitudes regurgitated by lawyers when they fit their interests are purportedly liberal, so too are the forces that apply to ridding our society of crimes, like rape or sexual harassment, that have taken on sacred cow status. So much so that even the most progressive of schools have indoctrinated their students into believing that such principles as not convicting the innocent take a back seat to making sure no sexual harasser walks away.
Add to that the fact that most college students today lived more than half their lives under the regimen of fear borne of 9/11, and the government’s decade old “if you see something, say something,” campaign. They never walked onto an airplane without having their bags x-rayed and taken off their shoes. Compliance with authoritarian demands is the norm of life, and it’s been drilled into their heads that it’s for their own good.
Sure, there is the old Ben Franklin quote about liberty and security, but that’s as meaningful as when a Fourth Amendment opinion opens with the black letter law that a warrantless search is per se unconstitutional unless an exception applies. As soon as you read this sentence, you can bet your life that the search will be held lawful.
One student said, “If the innocent are convicted, then it is very probable that a guilty man will still go free because the innocent man will be in jail in his place.” I stopped and thought about the truth of his statement. In cases where a crime has been committed and the issue is who committed the crime, if an innocent man is convicted, the guilty man isn’t. He is free to commit more crimes.
Well, sure, but it assumes we have a means to distinguish guilt from innocence sufficiently effective that we could reliably avoid Type II statistical error. Since all we have is the criminal justice system, and it’s not exactly fool-proof, though “it’s the best there is” because people keep saying so, it brings us back to the question of which side we err on, convicting the innocent or freeing the guilty. Error is inherent in the game.
But Eric doesn’t stop there:
Taking it a step further, if an innocent man is convicted in any type of case, aren’t we all then guilty of unjustifiably taking his liberty?
This is where the rubber meets the road in determining why, historically, society has chosen to side with “N” innocent men. Just as some, well actually pretty much everybody but Nino Scalia, Clarence Thomas and three other miscellaneous justices, together with the family of the individual victims in any given case, would argue that it is an overarching wrong to execute a potentially innocent person, it is theoretically indistinguishable from the murder of which the prisoner is to be wrongly held accountable.
Eric sums this up as tolerance for authoritarianism. We didn’t always have it. We seem to have a whole lot more of it now, proof of the efficacy of propaganda. Despite the fact that sacrificing the occasional innocent lest a guilty person walk means that we have affirmatively assured that the guilty walk, it’s an acceptable cost for a safe society as far as many young people are concerned.
No matter how many platitudes, well-intended quotes or historical references to jurisprudential theory and logic are offered, the question remains whether we have raised a generation of young people who just don’t care if a few innocent people have to take one for the team, as long as they feel safer.
Not only will it manifest itself in the wrongful conviction of the innocent, the weakening of the burden of proof (better to err on the side of safety than liberty), and the myriad assumptions that belie an authoritarian state (why refuse a search if you have nothing to hide), but in the acceptance of ever-greater limits on basic liberties and intrusions into our everyday lives.
Kids. They’re the future. For better or worse.