The Inverse

It is better that 10 guilty men go free than one innocent suffer.

This is basically Blackstone’s formulation of what should be the priorities of a system of criminal law like ours. One of the worst things that our society ever does is lock up an innocent person.

And it happens a lot. This article concludes that the wrongful conviction rate is something between 3 and 5 percent. Even at the low end, that is a disturbing number, especially given the staggering total number of convictions that flow from the American courts every day.

It seems that the powers that be, especially in places like Virginia, seem to prefer the inverse of Blackstone’s formulation. Attributed to more authoritarian individuals from history, the inverse would see 10 innocents suffer so that one guilty person may be punished.

Which may be exactly what happened in the Bennett Barbour case. A few days ago the RTD reported that a convicted rapist has been charged for the crimes for which Mr. Barbour spent 30-plus years in prison. I have no idea whether the charged individual is guilty of this crime, and I of course will presume his innocence. However, for argument’s sake, I will give the Commonwealth the undeserved benefit of the doubt and count him as the one guilty person in the formulation. Assuming he is guilty and the Commonwealth does not bungle the case, one guilty person will eventually be punished for the terrible crimes of which Barbour was convicted.

In the meantime, unfortunately, it is impossible to know how many people have suffered on account of this injustice. One we can tally for sure is Mr. Barbour. Prison sucks, and I can’t fathom, much less expound upon, his physical and emotional suffering over the last 34 years.

Next, in addition to the wrongfully convicted man himself, we can surely count anyone who ever cared for Mr. Barbour as having suffered in this case. Family and friends watched as their loved one was hauled away for a crime he did not commit and stood powerless as he rotted away in a prison cell.

And while that certainly would get us over the 10-innocent-person mark, there are also the victims who may have suffered at the hands of whoever did commit this crime. That person has been walking free for 34 years. We can’t know for sure if the guilty party has committed crimes in the interim, but the possibility is another frightening aspect of our system of overzealous prosecution and shoddy police work.

Prosecutors and police and those who blindly support their efforts all claim to care about victims. Most of them probably really do. The problem is that they ignore how many extra victims might be created as they ravenously pursue every possible prosecution regardless of the circumstances and the likelihood of guilt or innocence, and in spite of prosecutors’ mythical ethical duty to see that justice is done.



2 responses to “The Inverse

  • John Woolley

    A couple of comments here, not to contradict you, and God knows I don’t have an answer to the problems, but these points should at least be part of our thinking about it.

    1. As far as I can tell, nobody suggests that defense lawyers should be trying to make sure that only innocent people stay out of jail. That being so, why do we feel (as we do, and as you say) that the prosecution should be trying to make sure that only guilty people get put *in* jail? We talk about giving each accused the best defense he can have, regardless of whether he’s innocent; so wouldn’t things be a bit more balanced if we tried to give each accused the strongest prosecution possible, too, again regardless of guilt or innocence? Yes, I agree the cases aren’t symmetrical, but why are we so OK with the defense playing games with the truth to get guilty defendants off, and so very upset about prosecutors who do the same thing?

    2. As you point out, there’s a huge cost to having the real guilty party (in a case like the one you’re writing about) wandering around loose — the “other victims who may have suffered”, and their families, and so on. But doesn’t this consideration mitigate in favour of overzealous prosecution? If a violent criminal is likely to commit more violence — and I think we all agree that’s pretty likely –, does that change the calculus of “better ten guilty go free”? After all, the ten who go free will probably victimize a lot more people, and possibly in a worse way, that the one wrongly convicted guy the state victimizes by imprisonment.

    As I say, no conclusions, just more complications.

    • Shawn Stout

      1. The short response to this is “that’s what the rules say”. As a defense attorney, our ethical duty is to zealously represent the interests of our clients. Prosecutors, however, are special, ethically speaking. They are the only type of attorney that has an affirmative duty to seek justice (I believe this is true in every American jurisdiction).
      As for why we feel this should be the case, it partially stems from the imbalance of power between the parties involved in a criminal prosecution. The government almost invariably has more power and resources than a criminal defendant. If defendants exercise their right to trial, they are generally going to get something at least nearing the “strongest prosecution possible.” I think it is because the contest is so inherently skewed toward one side that we (at least in principle) would like the big guy to play fair when he goes after the little guy.
      Perhaps most importantly, there’s the uncomfortable feeling in my (and I assume others’) gut at the thought of punishing an innocent person for someone else’s crimes. Empathy, I think it’s called.

      2. Overzealous prosecutors tend to ignore anything exculpatory and rely on sub-standard police work to reach their predetermined conclusion of a person’s guilt. There are several possible results of this type of gamesmanship:
      (a) The prosecutor actually gets a conviction of a guilty person (which would be more likely if she and the police did their job properly.)
      (b) The prosecutor gets a conviction of an innocent person (by violating their constitutional rights and sometimes ignoring basic human decency.)
      (c) A guilty person goes free (because even guilty people have rights and there are a few judges out there who are willing to protect them.)
      (d) An innocent person goes free (because ALL people have rights and there are a few judges out there who are willing to protect them.)
      The undesirable options – b and c – are generally made more likely by overzealous prosecution. The more desirable options – a and d – are generally made less likely by overzealous prosecution. Of course there are variables like judges and juries that also affect the outcomes, and I am citing my own thoughts rather than empirical data, so take it for what it’s worth.

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