What Priority The Innocent?

It is good if criminal law avoids punishing the innocent. But just how good is it?

This poll says we should be willing to let ~8 guilty criminals go free to save one innocent from wrongful conviction, while this poll says that we’d need crime to go down by a factor of ~20 to make it worth switching from innocent-until-proven-guilty to guilty-until-proven-innocent. (All such estimates in this post are lognormal-fit medians.)

But do such huge factors make sense? Consider a simple model of social crime losses:

• B = loss due to crime being “Bad”; criminals gain less than victims lose

• A = loss from efforts to Avoid being victims of crime

• D = loss from Defensive efforts to avoid being caught and convicted

• E = loss from Enforcement efforts to catch and convict criminals

• I = loss from efforts to Inflict punishment

• S = loss from Suffering of the punished, if all were guilty

• H = relative Harm of punishing innocent, relative to guilty

• F = Fraction of punished who are innocent

• C = B+A+D+E = loss from Crime

• P = S((1-F) + H*F) = loss from actual Punishment

• L = C + I + P = total Loss

Imagine that we could cut all of the crime-related losses C, I, S overall by the same factor X, but at the cost of increasing the fraction F of folks punished who are innocent by factor RX. The ratio R that makes one indifferent to this change can reveal one’s value of H, i.e., how much more one cares about the suffering of the innocent, compared to that of the guilty. That is because in this hypothetical loss L changes by -X(C + I + P) + RXSHF. Setting this to zero, and (for small F) solving for H gives H = (C+I+P)/(RFP) = (1/RF)*(1+ C/(I+P))*(1+ I/P).

This poll gives ratio R = ~1/5, this poll says ~2% of convicted are innocent (though this study suggests 4%), this poll says P/I =~1, and this poll says C/(I+P) = ~17, Together these poll estimates imply H =~10,000! Which seems to me crazy high. Could call that a puzzling fetish for the innocent.

What gives? In teaching law, I’ve seen that most don’t want to lower the cost of lawsuits, to let law deter more harms. My interpretation there is that most see they don’t have enough money to make it worth others suing them, and don’t have anyone they want to sue, so see lawsuits as now irrelevant to them. They fear others suing them more than they hope to sue others, or want lawsuits to encourage good behavior. So they rather keep the cost of lawsuits high, to keep law out of their world.

Similarly, I suspect that most feel so confident that they will never commit a crime, or be the victim of a crime, that they see the most likely way they’d be involved with criminal law as being falsely accused of a crime. So their priority is to protect the innocent, namely themselves, at all costs. It’s less about lofty principles or sympathy for the downtrodden. They are willing to let the typical victims of crime suffer more to ensure that they personally escape negative consequences.

Note that these two law stories suggest that while most people support law, and think law is good for others, they don’t personally want law in their world.