When We Can be Certain: How to Safely Decimate Crime
By Alec Rawls © 1995/1998 (3900 words) Published in The Thinker, 12/8/95.

Our criminal justice system is broken. For one, it is capricious. Juries too often fail to convict when the evidence is clear, and they just as often throw people in jail when the evidence is not clear. The unreliability and expense of jury trials in turn forces district attorneys to routinely plea bargain down charges, often letting perpetrators off easy and keeping their true crimes off the record. Perhaps most frustratingly, the death penalty, needed because there is no less worthwhile way to spend a million plus tax dollars than on housing an un-releasable criminal for life, actually costs more to administer than life in jail.

These and other problems spread outwards from one glaring flaw in our jury system: the fact that the "beyond a reasonable doubt" standard of guilt stands in direct violation of the fundamental principle of moral reason.

Most people think that to be found guilty beyond a reasonable doubt means to be found guilty beyond a reasonable amount of doubt. But as jury instructions make clear, the modifier "reasonable" refers to the kind of doubt, not the amount. The amount of doubt that is to be tolerated is an unmodified absolute: if there is any amount of "reasonable doubt" -- that is, any doubt that it is not actually unreasonable or irrational to entertain -- acquittal is required. As soon as there is the tiniest amount of doubt that one would call "real", conviction is prohibited. No actual possibility of sending an innocent person to jail is to be tolerated. Our "no reasonable doubt" standard of guilt is in fact a certainty standard -- "human" or "moral" certainty as it is called by the courts -- meaning as certain as it is possible for a human being to be.

It is obvious that juries should only be concerned with reasonable doubts. But to allow no amount of reasonable doubt -- to allow no real possibility of sending an innocent person to jail -- means refusing to give any weight to the risk of letting the guilty go free, because the risk of punishing the innocent and the risk of freeing the guilty are two sides of one decision. They are the two sides of the scale that justice must balance. To be absolute about avoiding the one kind of risk means to be absolute about discounting the other. In our system, justice is not just blind, it is blindly standing on one side of the scale, and asking jurors to do the same.

The fundamental principle of moral reason requires that all value be accounted, as best as one can see how to account it. Because a certainty standard of guilt refuses to give any weight to the risk of letting a guilty person go free, it violates the fundamental principle of moral reason. This conflict between jury instructions and moral sense inevitably reduces the "no reasonable doubt standard" to, in practice, far less than a true certainty standard. Jurors are prone to follow their moral sense and abandon their instructions, voting to convict when the small chance that a defendant is innocent is far outweighed by the almost certainty of letting a perpetrator back on the streets.

Legal scholars typically describe the no reasonable doubt standard as coinciding in practice with something like a 95% certainty of guilt. That in itself would not be a bad standard. The problem is that, because this 95% standard results from a conflict between jury instructions and moral sense, the incidences of error are prone to be biased. Race or class sympathies, for instance, can easily induce jurors to go with jury instructions instead of their moral sense, acquitting when there is the tiniest smidgen of actual doubt. Race or class antipathies can easily have the opposite effect, prompting jurors to go with their moral sense and fully account the costs of letting a probable criminal back on the street.

The answer is not to scrap the no reasonable doubt standard but to augment it, by having juries hand down two verdicts: whether there are no reasonable doubts about guilt (our present nominal certainty standard), and whether the defendant is guilty beyond a reasonable amount of doubt, explained as something like an explicit 95% certainty standard. Compared to our present nominal certainty standard, an explicit 95% standard would be a less capricious way to achieve a less than full certainty standard (fewer defendants would get off because of race, class or other sympathies), but because it yields the same degree of certainty of guilt, it could slip right in as the new basic standard of guilt, to which current sentencing guidelines apply.

The certainty standard, in turn, would become a true certainty standard. Jurors would have, in the 95% standard, a legitimate avenue for accounting the risk of letting a criminal go free. The conflict between jury instructions and jurors' moral sense would thus be eliminated. Without this conflict, jurors could be expected to reliably follow their instructions and a true certainty standard would result.

Now here is where things get interesting. The availability of a true certainty standard would enable two critical changes in our criminal justice system that would make criminal justice vastly more efficient. We could literally decimate crime, with much less threat of harm to innocent defendants than at present.

First, consider the death penalty. The problem with the death penalty has nothing to do with its being too harsh for the crimes to which it is applied. The problem with the death penalty is that it cannot be taken back. The correct response to this limitation is to apply the death penalty only when guilt is certain. Because our legal system lacks a true certainty standard, this solution has not been available. Instead, we have compensated for the irreversibility of the death penalty by curtailing the range of crimes that are eligible for the death penalty and by allowing an interminable appeals process.

By applying the death penalty only when a true certainty standard of guilt is met, we could broaden the death penalty to the full range of cases where it is warranted and we could eliminate virtually all appeals. The risk of putting innocent people to death would be much less than it is now (it would be essentially zero), and society's evil predators would be eliminated, quickly and permanently, both in and out of prison, with huge savings in court and prison costs.

Even more surprising is how the addition of a true certainty standard of guilt could be used to eliminate plea bargaining. Any guilty party who pleads innocent is committing perjury and is still trying to get away with his crime, rather than submitting himself for punishment and reform. Under a less than certainty standard of guilt, pleading innocent and being found guilty is not sufficient justification for charging a convict with perjury and recidivism because, in those cases where the defendant is wrongly convicted, the harm to innocents would unjustly compounded.

But when a defendant pleads innocent and is found with certainty to be guilty, punishing his certainly proven perjury poses no risk to innocents. Doubling the penalty for being found certainly guilty as opposed to less then certainly guilty would be perfectly justified. A whole class of crimes might even become capital crimes if the perpetrator was proved in this way to still be trying to get away with crime. Recidivism is, after all, our worst criminal problem. Whether a criminal is willing to stop trying to get away with crime is critical to whether he can be returned to society.

Our present system treats it as a criminal's right to do whatever he can to continue to try to get away with his crime. That is a gross failing, which a certainty standard provides a very efficient answer to. Any perpetrator who thinks there is any chance that real proof could be amassed against him would face an extremely powerful incentive to plead guilty, while no innocent person will ever have anything to fear from a true certainty standard. The savings would be vast, with a great improvement in judicial results and no chance of doing harm.

Subtleties do arise. For instance, we can only be certain that pleading innocent when one is actually guilty demonstrates recidivism if we can be certain that the charged activity is properly criminalizable. Most areas of criminal law lie far outside the farthest limit of what could conceivably be protected by constitutional, common or natural law. But some areas -- consensual activity (sex and drugs) and self defense -- lie very much within the farthest limits of what should conceivably be protected. It would be wrong to punish acts of these sort as if a certainty of wrongdoing had been met, just because we knew with certainty that the acts had been committed. In general, remedies that are enabled by certainty must not be tainted by uncertainty.

Still, it would be easy to word a ballot measure implementing these changes. We already have a nominal certainty standard of guilt. We only need to complement it with an explicit 95% standard of guilt (an "almost certainly guilty" standard) to turn it into a true certainty standard. Then just double the punishment for being found "certainly guilty" vs. being found "almost certainly guilty", add the necessary guarantees to keep certainty from being tainted by uncertainty, and that's it. We could leave it to the legislature to articulate the proper full scope of the death penalty.

No matter what objectives of the legal system one thinks are most important, these reforms are a huge winner. We could decimate crime, reduce the costs of imprisoning the worst criminals by 100%, and slash court costs by making the guilty terrified to plead innocent, all while greatly reducing the risks to innocent defendants. Just the monetary savings in police, court and prison costs could add up to GNP in present discounted value, and the value of reduced crime would be even greater.

(Alec Rawls is pursuing a Ph.D. in economics)


Three addenda follow:

1. An addendum about gray areas and the death penalty.

2. An addendum on terrorism and the worst kinds of serial crime.

3. A proposed ballot measure for incorporatng the changes I advocate here.

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Addendum on Gray Areas and the Death Penalty (1072 words)

To be consistent, the provision that punishments enabled only by certainty must not be tinged by gray would have to apply to the designation of particular crimes by the legislature as death penalty crimes. This might seem to create a hopelessly high hurdle, which could be used to continue to frustrate the death penalty. But when there is no doubt that an action is properly punishable, and guilt is certain, it is easy to be certain that the death penalty is the correct punishment for entire large categories of crime. At that point it is just a choice between the death penalty and whatever alternative punishment society would impose, and a question of whether the costs and benefits of one over the other clearly (or certainly) favor the death penalty. In the case of life imprisonment, there is clearly no less worthwhile way for society to spend large amounts of money than on supporting its least worthy members to rot in prison. The death penalty wins this analysis by a factor of a thousand. There is no contest and no uncertainty.

Factoring in possibilities for rehabilitation only strengthen this result. Our policy of long term imprisonment for the vast majority of the most depraved criminals has turned our prison system into one of the most extensive systems of cruel and unusual punishment in history. We all understand the need to take the trash out of society, but it is just as important to take the trash out of the prisons, if we want our prisons to be humane places where lesser criminals can be rehabilitated. As for rehabilitating the worst criminals themselves, if they are not even worth keeping alive, it certainly makes no sense to spend a lot more money trying to rehabilitate these least propitious of all students. That is called "throwing good money after bad." On every count, keeping the worst criminals alive is a loser.

As the severity of crimes decreases, the value of the contributions a convict can be expected to make to society after he is let out can begin to approach the costs of incarcerating him. Then incarceration and rehabilitation can begin to compete with other uses of society's scarce resources. Of course there is also the value of the criminal's life to himself to weigh, not just the value of his life to society. But remember, these people are not owed by society. They owe, and until they can pay off what they owe, their life is not their own. Their happiness is not what matters. Once a criminal crosses that divide, where the terms on which he can be allowed to live incur far more debt than he could ever be expected to repay, that should be the end of him.

The lenience in our present system is out of a fear of punishing the innocent. When we can eliminate that concern, it is appropriate to eliminate that lenience, and punish, without malice, in the way that makes the best use of society's scarce public resources. That means, for a wide range number of the worst crimes, death. As the worst criminals are identified, we should be getting rid of them. If a disproportion of condemned criminals turn out to be black, as surely would be the case, that just means the black community has more to gain from these reforms than any other segment of society. Each removal of one of the worst criminals is an obvious boon to wherever they are taken from.

Freed from the concerns that have caused society to hold back on use of the death penalty, the legislature would have a field day extending the death penalty to its full proper scope. Certainly guilty of unmitigated rape? Or child molestation? Or any severe unmitigated violence? Gone! Certaintly guilty career criminals even of a petty variety also satisfy the certainty requirement. Anyone who it would be irresponsible to release from prison after a lengthy term of punishment should be put to death. If we're sorry we have to do it, we'll use lethal injection. If were glad to do it, we'll use a rope, or a guillotine, and it won't take us a year either. Maybe that'll scare the nerve out of some predators. If not, it will at least get rid of them.

This analysis does admit of one possible circumstance under which the death penalty would be an unnecessary and improper penalty. That would be if employment opportunities existed for prisoners by which they could more than earn their keep. Then they could be imprisoned for lengthy sentences without imposing unjustifiable costs on society. Given that, with the work inmates already do, the present cost per man-year of incarceration is about 25,000 dollars, and given that there is extensive unemployment at the bottom of the economic ladder already, this alternative will not be viable until far in the future if it ever is.

Also, there is retributive justice to consider. When anything less than a true certainty standard of justice is met, it is inappropriate to apply retributive punishments. This is what I think is the true spirit of Hale's dictum. Where vestigal doubt remains, we may still need to punish out of necessity, but it is a mistake to punish with malice. Once we are certain, this changes, and it is allowable and even called for to give full vent to retributive justice. Concern for retributive justice will in sum be recieving less the weight that in expected value it is due, so when we are free to give it its due, we should give it its full due.

These concerns together make it implausible that high marginal productivities of inmates will provide a grounds for stay of execution in the forseeable future, though there might be special cases (suppose it were concievable that an Einstein could be a moral imbecil). The problem with special cases is that the role of judges and juries is to judge people's crimes, not their abilities. If there is any concession made to the latter it should be left up to the executive to commute a prisoner's sentence of death until such time as the value that he has to offer has been extracted from him, then consider whether the remaining costs of keeping him alive until he can be released together with any retributive concerns are small enough that he should allowed to live any longer.


Addendum on Terrorism and the Worst Kinds of Serial Crime (528 words)

We also might want to consider following the implications of moral reason in the other direction and look, not just at what is called for when risk of punishing the innocent can be eliminated, but also at how moral reason would have us respond when the risk posed by freeing the guilty becomes astronomical, as is the case with terrorism. If the FBI succeeds in capturing someone who it can prove with 90% certainty is the Unabomber, must he be allowed to walk, with no constraints and no way to even keep track of him? Must he be allowed to secret himself again to where, if he is the Unabomber, he can continue his career of serial murder?

Moral reason says "no". It says that the risk of punishing an innocent person should be weighed against the risks posed by freeing the guilty. When the possibility of freeing a defendant who is actually guilty is extraordinarily risky, moral reason says that a higher risk of punishing the innocent should be tolerated. This is a standard practice of all legal systems in time of war, when military law takes over and people can be detained for hostile military activity upon nothing like the normal criminal standard of certainty, and can even be detained pre-emptively. The latter is too extreme to have any role in civilian law, but a lower standard of guilt has a very tenable and even necessary role when extremities like terrorism are involved.

Just as a higher standard of certainty of guilt calls for more severe punishments, a lower standard calls for less severe punishments. The higher likelihood of punishing the innocent implies that hardships should be mitigated. Indeed, punishment per se should be eschewed. Sentences should be limited to preventative measures, such as barring "convicted terrorist suspects" from the instruments of crime, and forcing them to submit to whatever is necessary to allow law enforcement to monitor their movements, while interfering with their liberties as little as possible. (The failure to follow this principle was the worst aspect of the internment of Japanese Americans in WWII. Harm to innocents was not minimized, as with the failure to protect vacated property.)

It is conceivable that moral reason could call for extending such practices to many categories of crime, perhaps allowing police the means to monitor anyone that a jury judges more likely to be guilty than not guilty (a 50% certainty or "preponderance of evidence" standard) of any serial crime. On the other hand, a complete analysis might well reject this step as unjustifiably intrusive, especially if other legal reforms can succeed in drastically reducing crime. Three standards of guilt might also be too confusing for juries to consider on a regular basis. Clearly though, a much lower standard of guilt and sentences to submit to minimum necessary monitoring and debarment are called for in the cases of terrorism, serial murder and any serial violent or sexual crime. With the threat of terrorism having nowhere to go but up (we have been so lucky so far) we would do well to remember what steps moral reason allows here, or we are bound to overcompensate elsewhere.


Proposed Ballot Measure (496 words)

Since our society has deemed vestigial doubt about guilt to be so important that we are willing to compromise our entire system of justice to defend against it, we should obviously be distinguishing between cases where vestigial doubt is and is not present, so that we can avoid compromising justice unnecessarily.

To this end, juries are to apply two standards of certainty of guilt -- a certainty standard, and a less than certainty standard. The less than certainty standard is to be a 95% standard of guilt, meaning that a juror should just be willing to find a defendant guilty under this standard if he thinks that, given the degree of certainty of guilt he feels, he would not be wrong more than one out of twenty times.

For a juror to find a defendant certainly guilty, he must decide that there are no reasonable doubts about the guilt of the defendant. A reasonable doubt is a doubt which it is not unreasonable or irrational to give weight to. For instance, if jurors suspect a conspiracy to frame a defendant, they must consider the full extent of the conspiracy required to account for all damning evidence, and find a reasonable doubt only if conspiracy of such an extent is by their reckoning a real possibility.

Jurors are to hand down a ruling of "certainly guilty" when the certainty standard is met, "almost certainly guilty" when only the 95% certainty standard is met, or "not guilty" when neither standard is met.

When a verdict of "almost certainly guilty" is delivered by the jury, the same punishments are to be applied that have hitherto been attached to a verdict of "guilty" under the single "beyond a reasonable doubt" standard of guilt. (These punishments can be altered by the legislature, just as they have been altered hitherto.) When the certainty standard of guilt has been met, the following punishments are to be imposed:

First, any defendant who pleads innocent and then is found "certainly guilty" is to receive twice the sentence he would have received if he had been found "almost certainly guilty."

Second, for crimes designated capital crimes, a finding of certain guilt will enable or require the death penalty as called for by the legislature.

Because remedies enabled by certainty are not to be tainted by uncertainty, the following exceptions are to be made. No certainty punishments are to be enabled in the prosecution of any activity that could conceivably, under either constitutional, common or natural law, not be properly criminalizable. This would include all matters of consent and any gray areas between what is and is not self-defense. Laws like statutory rape that assume non-consent where meaningful consent is still conceivable cannot warrant certainty punishments. Certainty punishments can, however, be applied to those who are found certainly guilty of child molestation, because child molestation is beyond the gray area of conceivably meaningful consent. In general, only what is untainted by gray can be eligible for certainty punishment.

End of proposed ballot measure.


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