Are We Too Obsessed By Capital Cases?

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4 Responses

  1. RCinProv says:

    “far more individuals are devastated by other aspects of American criminal justice policy.”

    Agreed. But some of those are devastated by false negatives, not false positive. When the discussion about errors in the criminal justice system focuses exclusively on false positive, I detect a worrisome bias. Perhaps the world of law profs is dominated by the defense view. But let’s face it, the error problem has two related Bayesian dimensions.

    In the area that I study–child abuse–there is plenty of reason to think that the false negative problem is enormous. But for a variety of reasons, the false positive problem gets all the attention in the media and among most academics.

    None of which disagrees with your post. It is just to ask, why no mention of victims who never receive justice?

  2. MJ says:

    A bit off point, but these discussions about the criminal justice system are always completely one-sided.

    In order to have any serious discussion about the criminal justice system it has to be acknowledged that the system gets it right the vast, vast, vast, majority of the time. Not withstanding the good professor’s unproven and unprovable “sense that a substantial number of innocent people may be pleading guilty to felonies,” the latest DOJ stats that I have seen (from 2003) is that 95% of all felony convictions in state courts occur by plea-bargain. That isn’t so easily dismissed that it hardly bears mentioning: its a titanic fact.

    You also have to talk about the role of prosecutorial discretion in not bringing an indictment or information because the arrest doesn’t warrant prosecution which – if my experience in a prosecutor’s office is any gauge -happens to between 3-5% of the time (Over much pouting by cops and prosecutors who usually feel the cases have merit, I might add).

    Particularly, given those two factors, you would be hard-pressed to find any system of government or even industry that gets it right as often as our criminal justice system does.

    I know that’s not what this post is about, but it seems to me that not only is the focus always on possible error in capital cases, but its always on possible error rather than the 97-99% of the time when conviction is agreed to, or the case is never brought at all.

  3. RCinProv says:

    MJ: What you are calling “accuracy” is itself one-sided. That measure is the chance that a guilty verdict is factually correct; it is not a measure of how often an acquittal (or other outcome that might let a guilty person go free) is factually incorrect. And yes, I hasten to add, we accept far more of those kinds of errors in exchange for minimizing the false positive problem.

    But how many? That question has to be part of the discussion about acceptable error rates in order to be coherent. Think of it this way: we could cut down on many (maybe most) of the false positives in murder cases by changing the burden of proof from “beyond a reaosnable doubt” to “beyond any doubt.” And if the only thing we cared about was false positives, then making that change would clearly be a good idea. But are you ready to make that change in order to minimize the admittedly horrible false positive problem? I’m not — because of the admittedly horrible false negative problem it would cause.