Lest One Guilty Man Go Free

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.

24 thoughts on “Lest One Guilty Man Go Free

  1. John Neff

    My imppression is that the presumption of guilt has been a feature of our society for a long time. It is an implicit assumption in news reports and the use of “alleged” in such reports has nearly disappeared. I guess it would be possible to do a word count on the use of “alleged” over time to check that out.

    1. SHG Post author

      The presumption of guilt has always been there, despite our lip service to the contrary. I think the paradigm shift, if there is one, is that young people are ready to throw up their hands and concede that the only way to get the guilty is to sacrifice a few innocents in the process. It’s not a presumption of guilt issue, but a concession that the price of safety is liberty, and they’re willing to pay the price.

      1. Jack

        As a young person (I’m 25) who went through college just a few years ago (my fiancee is still in grad school) – not everyone feels the same way. Yes, it is being pounded into young people that things like sexual assault or bullying are especially heinous and that any whiff or suggestion of guilt for these crimes is sufficient evidence for punishment. It’s no wonder when they get out of school and hear about crimes like kidnapping, murder, and rape which are far worse than what they were used to in school – the bar is even lower.

        However – we aren’t all like that. Some of us (many I know) are much more conscious of our civil liberties than our parents’ generation. While campus “justice” is very disconcerting, many of us who lived through it or watched it unfold would never want to see that foisted into the real world.

        It isn’t all doom and gloom for my generation when it comes to justice and civil liberties.

        1. SHG Post author

          I have no empirical study to back me up on this, but based on my anecdotal observations, you are in the minority. It’s not that everyone in your generation is like that, but most.

          1. Jack

            I don’t have empirical evidence either – but perusing my Facebook timeline occasionally (yeah I know – real scientific, but it is at least filled with people in my age group) and seeing what articles people are linking to, the comments they have about them, and what people are saying in general gives me at least some hope. I was pleasantly surprised what people were saying about the Martin/Zimmerman spectacle and their reactions to the NSA/Snowden events. I really hope “most” is actually “some”…

            Though, if I am completely wrong and we are all a bunch of little statists, it isn’t totally our fault – we had to call someone “Prof.”

            1. SHG Post author

              Your Facebook friends may be a bit of a self-selected universe that isn’t exactly representative of your generation. That speaks well of you.

    1. SHG Post author

      They are the product of their times, including all the influences, parental, governmental and societal. While we may not get a voice in the crap the government pushes into their heads, we still have the opportunity as parents and a society to enlighten them. It won’t be easy, and we may not accomplish the goal, but there is no choice but to try.

  2. John Barleycorn

    I just don’t know about your choice of “material” here to take a poke at a monumental quandary slipping down the slope.

    But it’s your show.

    I will poke back here with some tunes, palm on my forehead, and a happy smile that you did in fact choose to break on through to the other side.

    Have some Dead. This is not really the best recording of all time but I think the videography fits your sunset or sunrise quandaries overcome.

    I don’t even want to empathize with your electrons transfer let alone the extra few grey hairs it took fitting square boxes into oblong sphere software dilemmas.


    Fuck You (that might be a tad bit harsh) for not going after the merit and message of this post without more material including yours.

    You should repent wirh a few thousand word rant on the subject in the future to make up for your thin dance.

    Or not.

    Still shaking my head at the potential of this post.

    Nice of you though to put it in play here though.

    However, your bunt was feeble.

    Sunshine. Daydream.

    Cheers. Fade away would have left a hole. Glad you choose to carry on for a bit and roll out on your own clock.

    Good speed figuring out the new tricks for old dogs.

    Time. It just is.

    No vote here but damn if I am not waiting for a multiple hundred thousand word rant that you edit then just put out there.

    Column the mountain could be the eight pushing a dozen or so themes you keep dancing with around a solid May Pole.


    1. SHG Post author

      An uninspired choice.

      Bear in mind, if you feel that I’ve left something critical out, you might try to enlighten me as what I’ve missed. Chances are, though, that I’ve discussed it elsewhere, and that including everything ever written in every variation on a theme could get a bit, well, tedious.

  3. John Barleycorn

    “No vote here but damn if I am not waiting for a multiple hundred thousand word rant that you edit then just put out there.”

    Just a poke on my part. I have not departed my few random strolls through your archives without considerable admiration.

    Haven’t even dared to take a look yet. I sincerely hope they carried through the transition.

    The comments come and go 7 to 1 not much more than some flavor is lost.

    Your show.

    Sincere tip of the hat.

    Here you go.

    This might work with your coffee.


    Beating up on my tune lob throwing grenades to your tireless efforts as though they have not been read.

    Your show. But again this post missed.

    Damn glad to have you surfing new electrons.

    1. SHG Post author

      I can’t please everybody. And better choice.

      And try using the “reply” button. Keeps my house orderly.

      1. John Barleycorn

        Personally lamenting the glory of ’70 tunes.

        I can only hope this post and thread becomes default music dump.

        Lament your Nation.

        Or something like that anyway.

        We should keep score.

        Anything pre 19__

        Anything post 20__

        Well believe it or not bands are a pushing and not a signing.

        These guys took a step back after assimilation.

        I could be wrong.

        [Ed. Note: I’ve taken the liberty of moving this to a reply, though I expect you to figure out how these comments work and do it yourself from now on, and I’ve deleted the Youtube. One is enough. Two is too many. Three ain’t happening. Not even if it’s Zappa.]

  4. C. N. Nevets

    Until, of course, that innocent man is a family member, at which point the justice system will have failed them personally and they were lament the nation we’ve become.

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  6. Bruce Coulson

    Per “The Nightmare Decade” by Cook, during the 50s a college re-enacted the trial of Socrates, and the professors were appalled when the student vote was overwhelmingly for conviction. The students were unconcerned, stating the the defendant was ‘different’ and ‘advocating dangerous ideas’.

    Things did get better, so not all hope is lost.

    1. Sam

      To be fair, have you READ The Apology? Socrates was an ASSHOLE. I’m pretty sure he didn’t deserve death, but still. More people voted to put him to death than to convict him in the first place, because of the sheer raft of smug that is The Apology.

  7. John Barleycorn

    Wishful thinking delayed comprehension does not make for the Hegelian Leap.

    And for some tunes. As this is the SJ default not sanctioned junk yard.

    Only tunes and nothing but tunes.

    Imagine the enjoyment stumbling years from now.

    One post in hundreds found added too

    Our esteemed host filters out the….well hopefully not the music.

    Just here in this little corner.


  8. Jerryskids

    Regarding the idea that this is a generational thing, many years ago in college a prof asked the same question and I was appalled by the class consensus that a 50/50 split on guilty-going-free vs. innocent-being-convicted seemed about right. I don’t even know how you start an argument on the matter with someone with that mindset. But that was not the current generation coming up with that opinion.

    And an anecdote related to the question of whether or not this is a generational thing, in high school during a class discussion of the proposed deployment of neutron bombs to western Europe the teacher asked whether it would be more likely that the US or the USSR would be the first to use nuclear weapons in the event of war. Only one or two of us thought it would be us, virtually the entire class said it would be unthinkable for the US to launch a first strike considering the fact that we would be hitting a largely civilian population rather than strictly military targets. After a brief discussion, the teacher asked the class if they were familiar with Hiroshima and Nagasaki. Whether or not the US *would* be capable of a first use is a moot point considering that the US *already did* use them first.

    So, no, I don’t think the lack of critical thinking concerning the morality and consequences of your opinions is something you can pin strictly on the current generation. Let’s just hope that as they get older they get wiser.

    1. SHG Post author

      Funny. My anecdotes from college are just the opposite of yours. Then again, I know when I went to college. I don’t know when you did. Nor does anyone else here, except you, making your anecdote somewhat uninformative. That’s a problem with being pseudonymous.

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