Daniel J. Solove wrote a short essay titled “Why the Innocent Are Punished More Harshly Than the Guilty”. His position is that wrongly accused innocent people will, at least sometimes, refuse plea bargains and reduced sentence deals. Instead they will simply insist on their innocence, which will lead to harsher sentences than if they played ball and admitted guilt.
Jonathan wrote a cut-and-paste post of his own, agreeing that our criminal justice system is terribly outdated, woefully inaccurate, and completely unreliable. (Paraphrased for dramatic effect, of course.)
This set off a little back and forth in the comments. Since law enforcement is an interest of mine, I decided to chime in. My remarks soon became too large for a simple comment, so I decided it might be more useful to write a post of my own.
The first comment I want to discuss is by Shannon Love. He runs the numbers an concludes that our justice system works pretty well most of the time, but might be improved if judges were allowed to empower panels of experts to ensure that only reliable scientific testimony is admitted.
This is actually something I come across fairly regularly when someone finds out that I used to work in law enforcement. “Why don’t the cops have this piece of equipment, why doesn’t the courts do things this way?” As Lexington Green points out in his own comment, there just isn’t enough money to do everything. And there never is going to be, since expectations rise as technology increases capabilities. As the system can accomplish more, the public will demand more. And the media isn’t helping any.
Take the popular television drama CSI, where a PhD and a group of others with advanced degrees work the night shift. Just how much money does it take to lure such a dream team away from their studies, anyway? And this is just the graveyard shift! Is Stephen Hawking working the daylight hours?
Forget adding to the burden on the budget by advocating new programs. We can’t afford what is on our plate’s now.
Ginny points out that eyewitness testimony is unreliable, but she is not too crazy about living in a world that encourages us not to believe our “lying eyes.” She also thinks it might be a bad idea to get rid of it. Jonathan says “Eyewitness testimony is not reliable. Everyone knows this except, it appears, lawyers.”
It just so happens that I’ve recently discussed that very thing on my own blog. Bottom line is that the vagaries of eyewitness testimony is extremely frustrating to the professionals who choose a career in law enforcement, but it really is something the system can’t do without. The reason why is that juries always want to to listen to someone who was there, even if it is some flight of fancy. Get a criminal dead to rights, with a non-existent alibi and fingerprints all over the corpse, and you can still have a shaky case unless you can get someone to say that they saw them do the deed.
Harsh reality dictates that no one on the enforcement side of the law cares if the witness really saw what they say they saw, it only matters if the jury will believe. Educating lawyers on basic science would be pointless since their job is only to convince the jury that the science is correct if it bolsters their case, or to convince them that it is suspect if it harms their defense.
Educating juries, now. That might do something.
On that same comment, Jonathan also says “…there is a non-trivial percentage of convictions of innocent people, about which prosecutors profess unbelief even in the face of incontravertible DNA evidence.”
I’m not really sure what he means by that. If Shannon Love’s figures are correct, then only a tiny percentage of death penalty cases are overturned by re-examining the DNA evidence. Is anything less than a 100% confidence rate unacceptable?
If so, I’m afraid that Jonathan is not being very realistic. It is an imperfect world, and violent crime is usually a chaotic and frenzied act that the guilty will desperately try to deny any responsibility for. The standard of “beyond reasonable doubt” recognizes this basic flaw in the fabric of the world, and it is really the best we can do.
(I can’t say for sure how many capital cases are overturned by DNA evidence, or even how many cases have seen the evidence re-examined, because there doesn’t seem to be any statistics on this issue. Groups in favor of abolishing the death penalty claim that no one should be executed because some cases are overturned, which isn’t an argument I find particularly compelling because they like to lump in instances where someone was freed on procedural grounds. This muddies the water further, and I really can’t see any clear picture here.)
