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?

“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.

Mark Draughn in a post about Jamison’s asks:

Who among us, if caught committing a crime, wouldn’t be willing to apologize in as sincere-sounding a manner as we possibly can, if we’re told it could knock months or even years off our sentence? . . .

You know who’s going to have trouble accepting responsibility? People who are factually innocent. . . .

Requiring defendants to “accept responsibility” is a policy that rewards the truly guilty while punishing the truly innocent. . . .

To me, it feels as if the courts are engaging in a policy of collective moral cowardice. It’s as if judges don’t really believe the system works. The jury has been told to trust the system, and they do, rendering their verdict of guilt based on what they saw and heard during the trial. For the judge, however, that’s not good enough. He’d like to tie it up all neat with a confession just to be sure, even if the confession is coerced by a threat of a tougher sentence.

I can understand why police want to make a suspect confess. It’s part of the investigative process, part of building a case. But this practice of pressuring a person to confess after conviction reminds me of nothing less than the Moscow show trials under Stalin, when those accused of crimes against the state were coerced into confessing to whatever crimes they had been convicted of in the rigged trials.

Jeff Gamso comments on Mark’s post:

And there’s not supposed to be a penalty for exercising your constitutional right to trial. But if you insisted on going to trial, it’s hard to say that you were accepting responsibility, so the sentence goes up. Not for going to trial, but for not pleading guilty.

A person who is in fact guilty of a crime has not only no legal obligation but also no moral obligation to do harm to himself by confessing his guilt to the state and facilitating his own conviction and punishment at the hands of the state. It is therefore entirely inappropriate to punish at sentencing a defendant who insisted on going to trial for a non-existent moral failing intrinsic to the defendant. On the other hand, the public does have an entirely legitimate interest in resolving criminal cases by plea rather than trial, based not only on the public expense of trial, but also on the remote possibility that a jury might fail to convict a defendant whom the evidence in fact proves is guilty beyond a reasonable doubt. It therefore behooves the prosecution in plea bargaining and/or the judge at sentencing to give defendants who plead guilty some incentive and consideration for saving the public the expense and the risk of trial. Such consideration has nothing to do with the moral blameworthiness or praiseworthiness of the defendant.

This is still, as Jeff Gamso calls it, a “nasty” business, and still stinks of a “trial tax,” since the bottom line is that a defendant who is convicted after trial is likely to be sentenced more “harshly” than if he’d pled guilty, even though defendants who are convicted after trial and defendants who plead guilty “deserve” the same sentence. (It can be safely assumed that defendants who plead guilty aren’t motivated to do so by the desire to save the public the expense and risk of trying them, nor should they be.) But consider: A person who commits a crime but isn’t caught goes free, even though he “deserves” punishment. A person whom a prosecutor suspects is guilty but whom he believes a jury is only 50% (or less) likely to convict should also be allowed to go free (since a prosecutor must be himself convinced beyond a reasonable doubt by the admissible evidence that a defendant is guilty in order to ethically prosecute him, and a 50% likelihood of conviction just doesn’t cut it). If a 50% chance that a jury will fail to convict justifies a suspect going free entirely, a 1% chance that a jury will fail to convict justifies a suspect “going free” for some correspondingly lesser amount of time. (A judge can appropriately take this into account at sentencing even for a defendant who enters an “open plea” of guilty after the prosecution refuses to offer any plea bargain.) Obviously, after a defendant is convicted by a jury there is a 0% chance that a jury will fail to convict him. (On the other hand, I think it would be appropriate for a judge to take into account any residual doubt he may have about the guilt of a defendant who’s been convicted by a jury in sentencing him.)

The more ethically a prosecutor does his job — by only prosecuting defendants who given the admissible evidence are almost certain to be convicted after trial — the smaller should be the consideration necessary to induce a defendant to plead guilty, and the smaller the corresponding “trial tax.”

As I see it, the practical upshot is this: A convicted defendant who at sentencing tearfully expresses to the court and the victim his remorse for his crime should get no consideration from the judge in his sentencing decision for doing so. This protects wrongfully convicted innocent defendants who have nothing to apologize for, and has the incidental but not trivial benefit of ensuring that any such expressions of remorse are sincere.

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.

My comment:

In most crimes the criminal intent is ordinarily co-extensive with the harm caused. Felony murder and intoxicated manslaughter are two counterexamples where there can be a real disconnect between what was intended and the harm caused. But imagine a prosecutor who knows that the man he’s prosecuting is innocent but cheats his way to a conviction and a twenty year sentence. After ten long years the prosecutor’s crime is discovered and the defendant is exonerated and released from prison. Seems to me the prosecutor probably deserves at least ten years in prison, to make the evil of his crime be to him what it is to everyone else. Or does he deserve at least twenty, since that is the harm he intended to the innocent defendant? In this instance, harm-based retribution would actually be more lenient than punishment based solely on intent.

“Retribution” can and should be directed at the actual criminal intent rather than the harm caused by it, in a measure proportionate to the harm intended. (Though I’m also all for using the fact that intended harm did not occur as an occasion for leniency and mercy.) You’ve defined retribution in an intriguing way precluding this, to mean punishment for harm abstracted from culpability, but I’m not sure that’s what retribution necessarily signifies.

If not in retribution proportionate to the harm intended, where would we find the appropriate punishment for my hypothetical prosecutor? In other goals of punishment, like deterrence? How many years of imprisonment would sufficiently deter other prosecutors with similar inclinations from intentionally or recklessly sending an innocent man to prison for twenty years? Giving the prosecutor a fifty year sentence would presumably deter such prosecutorial misconduct more effectively than a twenty year sentence.