September 14, 2002

I’VE NOTICED the new developments in the Central Park jogger case, and I have to say that even after reading this article in the Village Voice I don’t feel that I have a complete handle on the issues involved.

Jeanne d’Arc has a post on the many reasons why the case is disturbing. It comes as no surprise to lawyers that the criminal justice system locks up innocent people. It’s an old and unfunny joke among prosecutors that “convicting guilty people is just your job — convicting the innocent is the real test of professionalism.” Like most dark jokes within the professions (for brain surgeons it’s “oops! there go the piano lessons!”) it’s mostly just dark humor, but like all of them it’s dark humor tinged with truth. Prosecutors say that their goal is achieving justice, not convicting people. But their conviction ratios are too important to their careers to ignore.

I think it was Thomas Jefferson who said that it’s much worse to convict an innocent person than to miss a guilty one — because when you convict the innocent, people perceive that obedience to the law is no protection. And I certainly don’t think that it’s okay — as some have apparently been saying — that no harm is done if a wrongly convicted person is eventually exonerated. Those years spent in jail are years lost forever, and pretty damned lousy ones at that.

Of course, any system run by humans is going to be imperfect. Even the old maxim, “better ten guilty go free than one innocent be convicted,” seems implicitly to suggest that if the ratio were 100-1 things might be different. (See Sasha Volokh’s already-famous law review article on this very issue.)

To my mind, the real test of a system isn’t whether or not it makes mistakes: by that standard, all systems will fail, since all make mistakes. The real test is whether the mistakes were made in good or bad faith, and whether the response to them, once they’re discovered, is marked by good or bad faith. What unfortunately happens in some criminal cases is that prosecutors try to block DNA tests, or hide exculpatory evidence, to keep a conviction from being overturned. I consider that sort of behavior to be the very worst sort of crime — because it’s not only wrong in itself, but undermines the whole system.

UPDATE: Here are some comments at Pundit Tree. And reader Tom Maguire points out that Max Power has been debating this with Uppity Negro for some time. And here’s something from Sisyphus Shrugged, which is also one of the better blog names I’ve seen lately.

ANOTHER UPDATE: Oh, and here’s one by Armed Liberal, who finds Jeanne d’Arc just a bit too “self-satisfied.” He adds:

I’m interested in why our three reactions are so disparate, and it cuts to one of my significant core issues, the alienation of many of us from our society and the overt disgust with all the instruments of government. In other words, the collapse of legitimacy.

I’m interested in why it is, when we correct the injustices of the past, and devise tools to ensure that it will be difficult to make the same mistakes again, we are dwelling on the “Oh, no, we were so bad” rather than the “we’re getting better”. See, I think that real liberalism…the kind that builds schools and water systems and improves people’s lives…comes from a belief in progress.

I think that this is a good point — though one question is, now that the system appears to be correcting its mistakes, how far will it go to make things right? I think a million bucks each is reasonable, though no more than reasonable, compensation if these guys turn out to be honest-to-God innocent. Think they’ll get that much?

And if the State of New York replies that compensating the wrongly convicted at that level is too expensive, given how often such things happen, well, that will tell us something, now won’t it?

ONE MORE UPDATE: Mark Kleiman weighs in with the voice of experience.

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