Brandon Garrett and Gregory Mitchell write in Slate:
Christopher Michael Sanchez had the right idea. During jury selection in his Texas trial for assault on a public servant, Sanchez’s lawyer asked the prospective jurors “to rate on a scale of one to five whether [they] agreed or disagreed with the statement that it is better for ten people [to] go free than one be convicted.”
While Sanchez was ultimately convicted, defense counsel was on to something fundamental about how people think about crime and punishment. Despite increased public awareness of wrongful convictions, the politics around criminal justice have begun to produce some strange inconsistencies. Particularly during recent elections, we’ve heard loud calls for more people who had been merely arrested, not convicted, to be locked up without a fair hearing. Lawmakers are presently considering harsher arrest, jail, and sentencing measures in response to violent crime. Sensational coverage of murder trials continues to attract wide audiences. Yet, at the same time, in opinion surveys, most people support police reform, reducing racial disparities, and a focus on rehabilitation and not just punishment in the criminal system. People may oppose defunding the police, but they also support community and social services alternatives to policing.
What explains these seemingly inconsistent views? Our research suggests that this is not the product of partisan divides or polarization, but that it actually reflects a deep source of common ground.
When English jurist Sir William Blackstone famously expressed the view that it is “better that ten guilty persons escape, than that one innocent suffer,” in 1765, he was not being particularly original. The notion that false convictions are a greater injustice than false acquittals animated the law at least as early as biblical times.
This view is the cornerstone of due-process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. In the United States, the Supreme Court first invoked Blackstone’s maxim in 1895 to justify the presumption of innocence, and again in 1970 to justify incorporating the requirement of the beyond-a-reasonable-doubt burden of persuasion in criminal cases under the Due Process Clause of the 14th Amendment.
But do people share Blackstone’s view? We asked a simple question that delivered a shocking result:
Which of the following errors at trial do you believe causes more harm to society?
• Erroneously convicting an innocent person
• Failing to convict a guilty person
• The errors are equally bad
Most respondents answered that the errors were equally bad. Our first results showing widespread rejection of the Blackstone ratio were so surprising and potentially disruptive that we tested their robustness multiple times, using a series of large samples drawn from the entire U.S. population and multiple measurement methods.
Across multiple national surveys sampling more than 12,000 people, we have found that a majority of Americans, more than 60 percent, consider false acquittals and false convictions to be equally bad outcomes. Most people are not Blackstonians. They are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent. Indeed, a sizeable minority viewed false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free. You would not want those people on your jury if you were charged with a crime.
These are not just abstract views, and they translated into how people voted to convict defendants in mock trials and how they weighed the evidence. For example, in one of our recent studies, the conviction rate among people who prioritize avoiding false acquittals was 58 percent, compared to a conviction rate of 25 percent among those who prioritize avoiding false convictions, even though the two groups reviewed the same evidence.
Perhaps still more surprising is that this is not necessarily a partisan preference. Majorities of Democrats, Republicans, and independents all viewed false convictions and false acquittals to be errors of equal magnitude. These findings reflect how most Americans balance fairness and public safety.
These findings have important implications for seemingly intractable divisions in criminal justice debates. Due process depends on jurors faithfully following instructions on the burden of proof, but our research shows that many jurors would not hold the state to its high burden. Instead, courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider other protections, such as stricter limits on prosecution evidence. Lawyers should rethink how they select jurors and present evidence, and judges should reconsider how due-process protections are implemented.
Further, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions like bail and sentencing reform. If a policy solution is framed as only improving fairness, but not answering the need for public safety, then it may fail. Similarly, framing a solution as only helping public safety, but not treating the accused fairly, will also not be successful.
Despite sometimes heated legal and political rhetoric, our justice system does not operate as a zero-sum game, even though in any given case the prosecution or defense wins. Convicting the wrong person is not just a fairness concern but also a public safety concern. When an innocent person languishes in prison, a guilty person goes free. From bail reform to sentencing reform to protections against wrongful convictions, a range of proposed changes can improve both fairness and public safety.
The public is not well-served by false dichotomies. Making both fairness and public safety benefits clear to the public will be crucial to the success of future criminal justice reforms.
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