THE LAW’S FLAWS: RETHINKING TRIAL AND ERRORS?

Author: Larry Laudan
Publisher: London: College Publications, 2016. 228p.
Reviewer: Alec Walen | October 2017

Larry Laudan has written an important book, questioning two well entrenched ideas about how the criminal law works in the United States. These ideas are (1) that we should be doing more to ensure that the innocent are not wrongly convicted, and (2) that the criminal justice system is indefensibly punitive, locking up too many (especially in minority communities) and locking them up for too long. Using empirical data and a utilitarian mindset, he argues that both of these ideas are mistaken, because both reflect the failure to take seriously the importance of incapacitating dangerous criminals.

I am not a criminologist, and I lack the expertise to assess Laudan’s empirical claims. Even so, I can say a few things about the empirical basis for his project. On the one hand, I see reasons to trust him: Laudan is a well-respected philosopher of science. His sources are largely the federal Bureau of Justice Statistics and prominent academic criminologists. And he is cautious to rely on conservative estimates when extrapolating from solid data.

On the other hand, there are times in the book when his numbers, literally, do not add up. For example, early on he says that 595 thousand (or 595k, as Laudan prefers to express it) people were arrested for violent crimes in the United States in 2008 (5). Then, on the next page, he breaks them down into the violent crimes for which people were arrested: “22k for murder, 36k for rape, 288k for aggravated assault and 158k for armed robbery.” This adds up to 504k arrested for violent crimes, not 595k. There are other anomalies as well. For example, he notes that there were 1.7 million violent crimes in the United States in 2008, and then reasons as though there were that many offenders (5), ignoring the likelihood (which he emphasizes in other contexts) that most offenders commit more than one such crime. And on a deeper level, he leaves unexplored a basic fact that runs counter to the gist of his argument, namely that “the annual risk of being the victim of a violent crime in the UK is about 3 percent,” and that “[r]oughly similar figures apply across most of the developed world.” (21) This suggests that the policy differences between countries either mysteriously cancel out, or make no difference. Either way, it suggests that the importance of punishment as incapacitation is harder to pin down than his argument would have us believe.

Nevertheless, I proceed on the assumption that his number are, over all, basically reliable. It is worth doing so, in part, because I think that many of his numbers truly are basically reliable. It is also worth doing so because his conclusions are significant and challenging. In particular, if his empirical story is basically reliable, then I think he is right to say that there are procedures and practices in the criminal law that are flawed because they do too little to incapacitate the dangerous. And at the same time, I think his position highlights the perils of the sort of utilitarian reasoning he engages in. His treats the criminal law as just a tool for minimizing harm to people, and I think some of his conclusions show why working from that assumption is deeply and interestingly wrong. An important value of Laudan’s book, then, is that it forces criminal law theorists who want to resist some of his conclusions—as I do—to be clear about what the criminal law is, if it is not just a tool for protecting society, and what else should do the job Laudan thinks it should do.

I proceed in three parts. First, I highlight a few of the statistics that he relies on to drive his claim that the law is too skewed to protecting innocent defendants, and insufficiently concerned with protecting potential victims of crime. Second, I highlight a few of the changes that he thinks should be made to improve the law. Third, I conclude with a few doubts about his framework and the prescriptions he endorses, while also acknowledging that some of his prescriptions seem quite sound.

Important Statistics

First, consider the scope of the problem of violent crime.

In 2008, “there were some 1.7 million violent crimes (meaning murder, rape, armed robbery or aggravated assault) in the United States.” (xviii)
The “annual chance of being murdered in the US (in 2008) was about 0.006%, producing a lifetime risk of being murdered is “about 0.4% (The lifetime risk that an American male will be murdered is about one per cent.)” (20)
“17.6% of women in the US and 3% of the men have already been rape victims.” (21)
Overall, the annual risk of being the victim of a violent crime is 2.5% in the United States (20), and the “lifetime risk of an American being the victim of a serious crime is … about 1-in-2.” (22)

Recidivism rates are also important, as they indicate how likely it is that a violent felon who is not incapacitated will commit more violent crimes.

A study of all prisoners released from American prisons in 1994 show that “[t]he average prisoner in this set already had nine previous arrests and four previous convictions before his current stay in prison.” (41, emphasis in the original)
“[T]his cohort accounted, at a minimum, for more than eight [%] of the homicides and more than five [%] of the rapes that occurred in 1995… [and] presumably they committed many other crimes that were not pinned on them by the courts since only about 22% of violent crimes result in a conviction.” (42)

Comparing the convictions of the innocent (false positives) and acquittals of the guilty (false negatives):

A generous estimate of the percentage of false positives in violent felony cases is 3%. (54-55)
The percentage of false negatives at trial is about 75% (59)
The percentage of those arrestees whose cases where dropped or dismissed but were probably guilty: 56% (63-64)
Overall rate of false negatives (guilty released without punishment): 40% (64)
Annual rate of false positives for violent crime in the U.S.: 1 in 22,700 (73)
Annual rate of being victimized by a falsely acquitted violent felon: 1 in 2,300 (73)
The average sentence for a violent crime: 7.6 years (74)
Number of violent felonies committed by violent felons released in a single year due to a false negative (dismissal or acquittal): 112,000 (85)
Number of victims of false positives in a single year (including both those falsely convicted and those harmed by true felons who remained free): 24,000 (85)

The conclusion Laudan reaches, as summed up by these last two numbers, is that the harm from failure to convict the guilty greatly outweighs the harm from convicting the innocent. One might be tempted to object that these are not equivalent harms, that being convicted is much worse than being victimized, except in the relatively rare cases of murder and the worst forms of rape or assault. But Laudan pushes back against that, pointing out, on the one hand, that many convicts do not serve a full sentence, but rather are released on probation or parole, or have their convictions reversed (75), and, on the other hand, that many who are victimized by the lesser violent crimes of assault and armed robbery suffer “serious injuries”: 38% for armed robberies and 30% for aggravated assaults. (75)

In sum, if Laudan’s numbers are sound, the total harm from false acquittals is almost certainly many times greater—Laudan figures it is 4.7 times greater (79)—than the harm from false convictions, and that makes the focus of many criminal law theorists on false convictions seem misplaced. One might try to defend that ratio in a number of ways; I will come back to that in the last section. For now, I want to end this section by pointing out that, from a purely utilitarian perspective, the law seems to be ill designed and the idea that we should be more worried about convicting the innocent than about incapacitating the guilty misplaced.

Changes to Consider

To address the problem described in the previous section, Laudan advises revising a number of flaws (not features) of the criminal law. These include:

An overly stringent standard of proof: proof beyond a reasonable doubt;
Exclusionary rules that bar inculpatory and relevant evidence;
The prohibition on commenting on a defendant’s silence;
The ban on appealing acquittals based on legal error;
Bail, probation, and parole procedures that let many guilty defendants go free.

There is no space here to discuss all of these. But I will say that I found his arguments on most of these quite persuasive. The one I want to discuss here is the first, the standard of proof, as it highlights the way the criminal justice system is skewed towards protecting the innocent from punishment.

Proof beyond a reasonable doubt, what Laudan calls the BARD standard, is theoretically a very high standard. Moreover, the fact that the rate of false positives is around 3% indicates that it is, in practice, very high. Still, many argue that it should be higher, so that it would be even harder to convict the innocent. But Laudan has an important point to make about the cost of doing so. If the false positive rate is now around 3%, then “there are roughly 32 guilty defendants for every innocent defendant in the region marked out as the ‘conviction zone’ by BARD.” (98-99) If we raised the standard slightly we could change the ratio to, say, 40-to-1. Here is what that would do: it would “convert 1,000 current false positives into true negatives [which] would inevitably mean converting some 40,000 true positives (using the current standard) into false negatives.” If we assume, with Laudan, that a false positive has a double harm (the innocent person is convicted and a guilty person is left free), then we might save some 2,000 or so innocent victims. But his conservative estimate is that each violent felon who remains free victimizes 1.2 innocent victims. (99) Thus, to save some 2,000 victims, we would make a change that would result in 48,000 other, comparable victims. It hardly seems a good idea.

Indeed, from a utilitarian perspective, the right thing to do is to go in the other direction. “If we lowered the standard of proof by a comparable amount so as to increase the false positives” by 1,000, we could expect to get about 2,000 new victims from that, but would convert “some 25k false negatives into true positives [which] would reduce the harm currently occurring by some 30k victims.” (102) Following this logic, Laudan thinks we should take the standard of proof in criminal cases, at least for violent crimes, all the way down to 65%. (97) He acknowledges that the prospects of the courts allowing any meaningful reduction in the standard of proof are “low.” (108) Accordingly, he does not push this change as the centerpiece of his book. But it is important to see why he thinks it would nonetheless be a “desirable” change. (108)

Thoughts on Laudan’s Prescriptions

As I said above, I think many of Laudan’s criticisms of procedures like banning the appeal of an acquittal are convincing. But in this closing section I want to raise three particular worries about his methodology. First, at a most basic level, though Laudan bills himself as a utilitarian, his rhetoric fights against that. He assures me, in personal communication, that whenever he runs the numbers, he counts the harm of incarceration the same whether it is the guilty or the innocent who are incarcerated. But his rhetoric throughout the book is concerned with the protection of the innocent. This is not meant to be an objection in its own right to his rhetoric. A consequentialist can adopt this sort of retributivist axiology or value theory. But there’s a tension throughout the book as to whether he is really a utilitarian, concerned to minimize all harm, or a consequentialist, concerned primarily with reducing harm to the innocent.

Second, one might respond to his claim that the criminal justice system allows 4.7 times as much harm as it causes, and that it could minimize harm by doing more to incapacitate the guilty, by taking another step away from utilitarianism. One might argue that the ratio is actually about right because causing harm is harder to justify than allowing harm to occur, that is, by appealing to the distinction between doing and allowing. Unfortunately, Laudan does not engage with this issue in his book. One who thinks the distinction is quite strong would think that the objection is devastating. Myself, I think the distinction does some moral work, but I also think that it is only slightly worse to cause harm than to allow it. Accordingly, I think that one should still take his argument as putting pressure on the criminal justice system.

My third worry is the one that I think is most interesting and important. Laudan disavows any concern with particular theories of the criminal law; he says he is just a pragmatist concerned with whether the law is doing what the social contract requires of it. (45). But I don’t think one can take such a cavalier attitude about what the criminal law should be called upon to do. The criminal law is not, I believe, just a tool for incapacitating the dangerous. It is, first and foremost, a tool for holding the guilty to account for their wrongdoing. That is why it goes to such great pains to distinguish types of mens rea, justifications and excuses, and other requirements of the general part of criminal law. Yes, the criminal law can be used to incapacitate the dangerous, insofar as doing so is consistent with notions of proportional punishment. But it cannot be deployed simply to incapacitate the dangerous.

This has relevance, for example, for the standard of proof. I have argued elsewhere that the standard of proof cannot be set directly by the goal of optimizing the incapacitation of the dangerous because, if it were so set, it would do an end run around the idea that punishment is reserved for the guilty. It would allow us to say that it is appropriate to hold someone guilty, even though the probability of guilt is low, because it would be useful to treat him that way. That way of thinking should be anathema to the criminal law.

This point about the standard of proof is just an example of a more general call to think more carefully about why we have a criminal law and why we think that due process is crucial for a criminal conviction. Here’s a brief sketch of my alternative vision: The main threat to humans is not the individual violent felon; the main threat is organized crime, which can more or less completely take over the machinery of the state, so that the state becomes fundamentally a predator. The struggle to establish a legitimate state is the struggle to establish a form of social control that serves the public welfare and respects the rights of the individuals who comprise it. The state, as an actor, has to respect the rights of the individuals with which it deals, which requires, among other things, distinguishing different justifications for different kinds of acts. Criminal punishment is one sort of justification, and it must not be confused with other forms of justification, such as seeking to neutralize imminent threats, or seeking to incapacitate the dangerous. Each type of justification has its own internal moral logic, and they may not simply be thrown into a pragmatic hopper and treated as so many tools ready to hand.

In conclusion, I don’t object to the idea that the criminal law could be made into a better tool for incapacitating the dangerous. That is one of its functions, and insofar as it can do so better without violating the basic premise that legitimates its use—that it is a proportional, and respectful response to wrongful action—then it should be reformed. I also do not mean to imply that the standard of proof of guilt has to be practical certainty before a defendant can legitimately be punished. There is an intrinsic value in punishing the guilty that has to be weighed against the disvalue of punishing the innocent when setting the standard of proof. What I object to is conflating the value of doing justice by punishing the guilty with the value of incapacitating the dangerous. Doing so is morally illegitimate in its own right. In addition, it seems to me to have its own pragmatic downside: It fails to recon with the fact that the big problem is not the danger posed by isolated violent felons, but the danger posed by those who would direct the state with predatory intent. The essence of combatting them is building up respect for the sort of due process and rule of law that can keep such predators in check. That sort of project requires a very different framework than the straightforward, no-nonsense pragmatism espoused by Laudan.

Alec Walen, Professor of Law, Rutgers University