People v. State

Suppose you’re a juror in the trial of a defendant accused of being a serial child rapist/murderer. After all the evidence is presented you’re 95% certain — but only 95% certain — that the defendant is guilty as charged. You might be understandably reluctant to vote to acquit based on a 5% chance that the defendant is innocent. If the defendant is guilty — and it’s 95% certain that he is — voting to acquit would mean he’d be free to rape and murder other children. But a 5% doubt is certainly substantial, when you’re talking about the freedom of a man who just might be innocent (as would be a 1% doubt, or a .01% doubt).

I think that most juries who are 95% sure that a defendant accused of being a serial child rapist / murderer is guilty are going to decide that they are persuaded “beyond a reasonable doubt” of the defendant’s guilt and are going to convict. And maybe, in the interests of public safety and of all the potential future victims of the defendant, it’s right that they do so. If the defendant was in fact innocent, his conviction and imprisonment is a catastrophic tragedy, but so is being killed in a traffic accident.

But why risk compounding the tragedy of an innocent man’s conviction by trying to make a possibly innocent man’s life hell based on the assumption that he’s in fact guilty? Why not treat convicts as if they’re both innocent and dangerous? Why not limit the government to only necessary evil?

Jamison Koehler has an interesting post up On the Defendant’s Acceptance of Responsibility at Sentencing. I weighed in with a comment, observing:

“Punishing” a defendant for refusing to “accept responsibility” by admitting guilt is completely out of line. It is, however, appropriate to “reward” a defendant who saves the state the trouble and expense of trial by pleading guilty. A guilty-in-fact defendant might internally be genuinely remorseful for what he’s done — but this laudable spiritual attitude doesn’t mean he’s morally bound to accept as a good thing the expiation of his sins the state has in mind for him. The state — quite appropriately — commonly calls into question the sincerity of any remorse expressed by the defendant at sentencing, and argues that the defendant is “sorry” he got caught. We’d all be better off if the “acceptance of responsibility” charade was taken completely off the table.

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Read the whole thing: Schadenfreude, Irony, and The Defense Function

The whole post is excellent and thought-provoking, but I took issue with this:

Normal people (like normal dogs) have an innate sense of fairness: people should get what they deserve, and no worse. But normal people also seem to have an innate sense of retribution: people who do harm should be punished, regardless of their culpability. Retribution is what makes a child angry at the sofa on which he stubs his toe, and retribution is what makes the punishment for DWI with no injury different than punishment for intoxicated manslaughter.

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