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August 16, 2018

"Tradeoffs Between Wrongful Convictions and Wrongful Acquittals: Understanding and Avoiding the Risks"

The title of this post is the title of this interesting-looking new paper authored by Paul Cassell now available via SSRN. Here is this abstract:

This article focuses on trade-offs that inhere in the criminal justice system, tradeoffs neatly encapsulated in Blackstone’s famous ten-to-one ratio of guilty persons who should be allowed escape justice rather than an innocent suffer. Blackstone’s aphorism reminds us not only of the importance of ensuring that innocent persons are not convicted, but also that unbounded protections might unduly interfere with convicting the guilty.

In my contribution to a symposium in honor of Professor Michael Risinger, I respond to thoughtful articles written by both Professors Laudan and Zalman and make two main points.  First, in Part I, I turn to Professor Laudan’s policy proposal for reducing the number of wrongful acquittals — e.g., lowering the prosecution’s burden of proof at trial for previously-convicted felons to clear and convincing evidence. This proposal is unconstitutional under existing Supreme Court precedents, which interpret the Constitution to require the prosecutor to prove a defendant’s guilty by proof beyond a reasonable doubt.  And in addition, Laudan has failed to demonstrate that his proposal is cost-beneficial because he has not persuasively articulated a way to weigh the costs of wrongful convictions against those of wrongful acquittals. But I offer a “friendly amendment” to Laudan’s idea. It should be possible to capture almost all of the benefits of his proposal by placing violent felons on extended periods of parole or supervised release — a condition of which would be that they not commit new crimes.  Then, when a previously-convicted felon is arrested for a new crime, he could be tried for a parole violation rather than given a new trial.  Supreme Court precedent allows parole violations to be tried under a lower burden of proof. Reconfigured in this way, there are strong reasons for thinking that the proposal might well be a cost-beneficial way of reducing wrongful acquittals.

In Part II, I challenge Professor Zalman’s claim that he is truly writing from an innocentric perspective.  Someone proceeding from this vantage should be willing to endorse a criminal justice reform measure if it meets three criteria: first and most important, it reduces wrongful convictions of the innocent; second, it does not reduce (and ideally would increase) the number of guilty persons convicted; and third, it should not significantly impair any other competing values.  With these evaluative criteria in mind, Zalman appears to be a mere fair-weather friend of the innocent, as he does not appear to truly privilege innocence over other competing values. In contrast, my reform proposals (which Zalman is reluctant to endorse) reorient the criminal justice system away from adjudicating procedural issues and toward adjudicating substantive issues of guilt or innocence.  The truly innocent will benefit in a system that values substance over procedure — and someone who truly holds an innocentric perspective should endorse reforms that move the criminal justice system in that direction.

August 16, 2018 at 02:24 PM | Permalink


It is pretty shocking that this article ignores the role of prosecutors entirely, including rampant Brady violations and other proprietorial misconduct. A real concern with innocence would include consequences for proprietorial misconduct, something that is currently virtually nonexistent. Relatedly, requiring the prosecution to provide its entire file to the defense would go a long way toward protecting the innocent.

Posted by: fuzzyone | Aug 16, 2018 4:17:27 PM

"Then, when a previously-convicted felon is arrested for a new crime, he could be tried for a parole violation rather than given a new trial. Supreme Court precedent allows parole violations to be tried under a lower burden of proof."

But this is monkey business. The reason that SCOTUS allows for a lower standard of proof for parole violations is predicated on the notion that parole conditions must be related to the crime of conviction. Making every new crime by definition related to the old crime makes a mockery of this conceptual notion of parole. It says that once a person has been found guilty of a crime they deserve less trial rights than a person who has never been convicted of a crime. This--in effect--creates a new class of citizens "the semi-innocent until proven guilty". If Cassell wants to do this he needs a stronger social justification than reducing wrongful acquittals.

Posted by: Daniel | Aug 16, 2018 6:30:38 PM

I think that the term "wrongful acquittal" was used is a very bad sign.

Posted by: John Neff | Aug 16, 2018 9:41:07 PM

The part I find shocking is cases where the prisoner is proven innocent beyond a reasonable doubt by publicly available evidence -- and yet the prosecutor still fights to keep them in prison. Cases like Joey Watkins (Rome, GA) come to mind. The incentive for the prosecutor to do the right thing simply doesn't exist.

I think it's a fundamental problem with our adversarial system -- some prosecutors choose to think of a conviction as a "win", regardless of whether or not the person actually did it.

I think any remedy would require a Constitutional amendment. The problem is that you don't want to open the floodgates to a whole bunch of bad claims. One way I can see to prevent that would be a large economic disincentive to make a claim that is going to lose, and a corresponding economic disincentive for the State to fight when they are in the wrong. Even indigent defendants could benefit -- if they were provably innocent, and this were publicly known, the public would put up the money. But under our Constitution, as it stands, a proposal like that isn't possible.

Posted by: William Jockusch | Aug 16, 2018 10:27:56 PM

@John Neff

I admit that I am not a fan of the phrase myself but I do comprehend what Cassell is aiming at: in science we would call them "false negatives" in counterpoint to the "false positive" that is a "wrongful conviction". So the term he uses makes sense understood in that context.

Posted by: Daniel | Aug 17, 2018 1:46:29 PM

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