Overcoming Bias

Overcoming Bias

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What Priority The Innocent?
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What Priority The Innocent?

Robin Hanson
Dec 24, 2024
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What Priority The Innocent?
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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.


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By Robin Hanson · Hundreds of paid subscribers
This is a blog on why we believe and do what we do, why we pretend otherwise, how we might do better, and what our descendants might do, if they don't all die.
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Discussion about this post

Daniel Greco
Dec 24

You might be interested in the "anti-Blackstonian" movement in legal theory. I have in mind in particular Larry Laudan's work (eg, early chapters of "Truth, Error, and Criminal Law"), but he's been influential. While he doesn't model the relevant tradeoffs exactly as you do, what he does is pretty similar in spirit, and he also concludes that the idea that we should very strongly prefer acquitting the guilty to convicting the innocent turns out to be a lot harder to justify than normally thought.

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1 reply by Robin Hanson
Steven
Dec 24

Fundamental failure to understand the operative frame of reference.

To punish the guilty is a matter of proportion: does the punishment fit the crime? To punish the innocent who committed no crime is therefore like trying to divide by 0: the result is effectively infinitely disproportionate.

Worse, they aren't merely like values incremented in positive and negative directions. To punish the innocent is categorically different from punishing the guilty, it is itself another moral wrong of commission. Commission and omission are not directly comparable. Justice and injustice can't be traded like a fungible unit of exchange.

Then you finish with an entirely unsupported bit of bad faith mind reading. This entire article is an illogical ad hominem against people who disagree with your preferred policy. Given the title of this space, it doesn't belong here.

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