In the comments to a  Sentencing Law & Policy post about a  bizarre trade-off for a stone killer, a guilty plea on a case where he had been acquitted in exchange for life imprisonment rather than the death penalty, Bill Otis from  Crime & Consequences explains our worst nightmare.

The impetus for Otis’ comment was one by someone who goes by the handle California capital defense counsel, who took issue with an earlier Otis comment trivializing the plea of the innocent  Norfolk Four to avoid the death penalty.

There are thousands more innocent men and women in prison. Yet, you continue to beat the drum in favor of incarceration nation.

Otis responds:

That is because “incarceration nation” has helped save, not thousands, but millions of citizens from being victims of murder, rape, robbery, aggravated assault, carjackings, theft and the other wonderful undertakings of your and many other defense lawyers’ clients. I have previously put up the startling numbers of crime reduction over the years of “incarceration nation” and will not do so again since all you have to do is look it up. I have also put up the studies showing that incarceration was the single most important factor (a quarter or slightly more) or the massive decrease in the numbers of these crimes.

And let’s just end the charade, shall we? Your rote invocation of the allegedly innocent is just cover for your desire to change the system so that it will be increasingly incapable of punishing the overwhelming mass of defendants you know full well are guilty. That incapacity, and the resulting increase in crime it will bring about (as it did in the sixties and seventies) is exactly what you seek.

There are bad people out there, for sure.  While we chisel  Blackstone’s ratio over courthouse doorways, that it’s better that ten guilty go free rather than one innocent be convicted, Otis informs us that’s a charade.

There is no system on this planet, now or ever, that will ALWAYS avoid the occasional erroneous conviction. If you were ever to become an adult, you would understand that settling on a particular criminal justice system involves a choice among trade-offs. The trade-offs we have now result in some erroneous convictions and some erroneous acquittals. We could change the mix by tilting the rules one way or the other, sure. But the other thing we have now is a joyous overcoming of the skyrocketing crime and crime victimization of the sixties and seventies. Our citizens now enjoy a lower crime rate than they have at any time for more than 50 years.

This notion has been expressed, ridiculed, supported, and debated a thousand different ways, with the notable caveat that it’s a facile view provided it’s not you or your loved one who’s asked to take one for the team. 

But Bill Otis, for all his bluster, is no fool.  He knows that people will not merely accept, but embrace a system that sacrifices our rights for their safety.  The folks more inclined to read blogs like SJ rather than C&C, or even Doug Berman’s Sentencing Law, where he accepts the death penalty as a necessary final solution, may not accept the idea that our ideas of the relative weight of civil rights and constitutional freedoms aren’t universally shared.  They make so much sense to us, that it’s almost impossible to imagine that others see things differently.  Yet they do.

As we spend a great deal of time focusing on police, prosecutors and courts, and can’t understand why there are people who don’t seem concerned about the flawed system, inherent corruption or even the net result, an incarceration rate that makes the rest of the world look good, we refuse to see one fairly fundamental thing: Most people tend to agree more with Bill Otis than us.

There is a reason why tough-on-crime politicians get elected.  There is a reason why the citizens aren’t storming the Bastille.  This isn’t the most important issue they face in their everyday lives, and, well, it’s just not that bad as far as they’re concerned.  As long as the sacrifice of rights and innocence belongs to someone else, and they sleep safely at night, it’s okay. 

No, not great. Few would argue as vociferously as Bill Otis that constitutional rights are a charade to protect the guilty, or that any erroneous conviction rate shy of half is acceptable to keep the millions of citizens safe at the cost of a few thousand innocents.  They would certainly want a better system, and rights respected. They will “tsk” at police misconduct and senseless violence, and shake their heads in dismay.

But they will not take up arms against it.  Not a chance.  Not even close.  The truth is that they would like a better world, a better system, a system without its warts.  But the one we have now, flawed though it may be, isn’t bad enough for them to suffer a paper cut, no less lose their life over. 

We spend a good deal of time in an echo chamber of people who are both deeply concerned about these matters, and inclined toward the side of civil rights and individual freedoms.  We think about the Constitution a lot, and its place as a limitation on government.  We are not inclined to sacrifice innocent people for our own protection.  But that’s us.

Meet Bill Otis. While we may completely and totally disagree with everything he says, we can’t ignore it or deny that his views reflect what is happening in our nation more than ours. Sad, but painfully real.