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Wednesday, May 25, 2005


Benjamin Franklin thought "that it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer." For "one hundred", substitute N, and probably everyone can find some N, between 0 and infinity, that they feel comfortable with. As one rather amusing essay points out, lots of people over time have put forth different values for N, with the current mean value being approximately 59.72. In other words, in the United States, we believe that on average, it is better for 59.72 guilty persons to go free than to have one innocent punished, but better to have one innocent punished than to have more than 59.72 guilty people go free. Note that an N of 0 means we would have to round up an imprison everybody and an N of infinity means that we should never punish anybody because we can never be absolutely, one-hundred percent sure of guilt. In the latter case it would be pointless to even bother to arrest anybody since we wouldn't end up punishing them. In that case, we could close down the courts, fire all the policemen, and with the expenses saved, we could cut taxes. The point is that it doesn't make sense to insist that innocent people are never punished - it will simply happen some of the time if anybody is ever punished, and indeed, in some ratio to the number of guilty who go unpunished.

I know someone who was a Public Defender for several years and a fantastic story teller. The stories she told of how she helped numerous guilty crooks escape justice were captivating and enjoyable. She saved the guilty from serving countless thousands of years of time in jail. She was proud of it too, because these guilty people were, in her opinion, the downtrodden of the earth, to be protected and kept free at all costs in that horribly oppressive and unjust society that is the United States today. We can imagine that her N is quite a bit higher than the 59.72 average. I can also imagine that she and her colleagues pushed the actual N well past the 59.72 ratio desired by the people of the United States.

Of course she also helped the innocent avoid punishment. I'm sure that was a good thing. But even here, some of the stories gave me pause. For example, a drunken homeless guy finds an unlocked parked car and crawls inside and goes to sleep. The owner (a woman) finds this guy in her car and freaks out and calls the police. The police arrests the guy and he's charged with breaking and entering a vehicle. But he was clearly innocent of breaking and entering because the vehicle was unlocked. The owner claimed otherwise, but there was no sign of breaking and entering. The guy, defended by the Public Defender, goes free and justice is served - sort of. What about the poor woman who had to deal with the rather scary situation of finding some guy in her car? I guess no real harm done, but still, I'm left with this nagging feeling that something wasn't quite right.

One of the results of hearing these stories is that it is going to very hard for me to buy into any proposal that we increase the number of Public Defenders since it's clear to me that more Public Defenders will mean yet more criminals avoiding punishment. That being said, stories like the one a of a woman in Gulfport, Mississippi who was in jail eleven months before a lawyer was appointed, was in jail two more months before the lawyer came to see her, and was in jail one more month before they went to court and pled guilty to time served, all for shoplifting merchandise worth $72 does bother me a lot. So there are a few things I might try and change.
1. Shorten trials: this would have the benefits of freeing up Public Defenders for other clients and reducing the strain on the courts of having to recruit jurors. I don't know exactly how to do this. However, having recently received a jury duty summons for a four month trial, I've thought a lot about it, and I don't see how I personally could absorb four months worth of information and make a better decision than if I had just received one month of information. I'm not a walking encyclopedic computer that can utilize all of that information. The last three of the four months would basically be a farce.

2. Make bail easier to get for non-violent criminals: the alledged shoplifter should have been out on bail (unless she had previously skipped bail). The government should pay the interest on the bail bonds when the system is too slow. Perhaps the government should even guarantee bail bonds for the poor. I realize this doesn't solve the problem regarding the right to a speedy trial, but that concept becomes a lot less important if one is free and presumed innocent. I suspect that most of those out on bail would just as soon their court date be postponed forever. Those that did want a speedy trial could be given priority. Those waiting in jail for a trial should certainly be given priority.

3. Use fines instead of jail for punishments wherever possible: the resulting revenues could be used to hire more Public Defenders or to cut taxes. Drug possession and prostitution could easily be punished by hefty fines instead of jail time.

4. Use the punitive damages portion of tort settlements to fund the court system instead of having the money go to the plaintiffs.
I'm sure that there are better ways to enhance the system, and I'm all ears. But any politician who suggests spending more money for more Public Defenders will definitely not get my vote (all other things being equal).

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