When We Can be Certain: How to Safely Decimate Crime
By Alec Rawls © 1995/1999 (3100 words) Rewritten summer 99. Original version published in The Thinker, 12/8/95.

The salient feature of American criminal justice is a systematic bias in favor of the defense, and for good reason. The framers of the Constitution firmly believed that misuse of government power should be weighed more heavily than private criminality because it can become an instrument of tyranny and cost us the republic. The first bulwark against this greatest threat is the extremely high standard of guilt in criminal cases, inspired by Sir Matthew Hale's declaration that: "It is better that five guilty persons should escape unpunished than one innocent person should die." The same caution in favor of the defense appears in the rules of evidence, in the right of the accused not to answer incriminating questions, in the requirement of the prosecution to provide the defense with its evidence with no reciprocal obligations, etectera throughout criminal procedure. This caution may or may not be worth the huge costs it imposes on crime control, but one thing is absolutely certain: if vestigial doubt about guilt is so important that we are willing to compromise our entire system of criminal justice to defend against it then we obviously ought to be distinguishing between cases where it is and is not present.

This can be effected by the simple device of having juries in criminal cases hand down two verdicts instead of one: guilty or not guilty according to a certainty standard and guilty or not guilty according to something less than a certainty standard. This extra discriminatory power would open up avenues of prosecution that generate enormous leverage over the guilty while greatly reducing risks to the innocent.

Consider the act of pleading innocent when guilty. Not only is this perjury, it is the essence of recidivism, still trying to get away with crime rather than admitting oneself to punishment and reform. Criminals whose mentality is recidivist should not be let back out to commit more crimes and anyone who is so brazen as to continue to try to get away with crime even when standing in the dock demonstrates an incorrigibly recidivist mentality. They should never be let out.

Under our present less than certainty standard of guilt it is inappropriate to add on charges of perjury and recidivism for pleading innocent and being found guilty. Some who plead innocent and are found guilty will actually be innocent and additional charges would compound the injustice. It is a cause for ambivalence that some such additional punishments are administered at present. The punishments for being found guilty are generally higher than a defendant could have been plea bargained for and the person who is wrongly convicted is hammered yet a third time if he continues to maintain his innocence in the sentencing phase, which judges often answer with a maximum sentence. Yet such punishments are still greatly tempered from what they should be if guilt were certain: not just a maximum sentence, but severe additional punishments for perjury and recidivism.

A true certainty standard would separate these cases. An innocent person who pleads innocent might be found "almost certainly guilty," but he would virtually never be found "certainly guilty." He would virtually never suffer a double or triple injustice, as happens with substantial regularity now. There could still be the one in a million case but, as I will discuss, a true certainty standard is available. We are talking literally one in a million and the difference between one in a million and the present one in twenty is night and day. The innocent would be far better served by dual verdicts, and the guilty? The risk of being squashed by an anvil should clear proof of guilt turn up would empty our clogged courtrooms overnight. Further, the guilty pleas would come without having to bargain down the charges. For those perpetrators who are brazen enough to plead innocent anyway we can take comfort in the percentage that will get squashed by the anvil. We'll be rid of them for good.

Which brings up the other avenue of prosecution that opens up when a true certainty standard is available: 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 has lacked 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 all appeals except for an automatic review for clear uncertainty. The risk of putting innocent people to death would be far less than it is now (it would be essentially zero), and society's evil predators would be eliminated, quickly, permanently, with huge savings in court and prison costs.

The death penalty is a necessary remedy. There is no less worthwhile way to spend a million plus scarce public dollars than on housing an un-releasable criminal for life. Further, 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, full of beatings, murders, homosexual rape and gang culture. 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 them to be humane places where lesser criminals can be rehabilitated. As for rehabilitating the worst criminals themselves: what for, if justice has already determined that they are never to be let out in any case? Criminals in general are the least propitious of all students. Only if we remove the worst half is there any possibility for the rest. Conditional on a certainty standard of guilt, I would vote for the death penalty for any serious unmitigated crime of violence and for all persistent property crimes recidivists. For the violent criminals we cannot risk recidivism. For the rest we cannot tolerate it.

We could reap the benefits of distinguishing between the certainly guilty and the almost certainly guilty without going as hard after the certainly guilty as I recommend. It is just that, once we can distinguish these groups, going hard after the certainly guilty makes sense. As for those recidivists who plead innocent and are found certainly guilty, call me Draco if you want, but I would give them the death penalty too. If standing before justice you are still trying to get away with crime the blade should drop, as if then and there, with only one proviso: there has to be certainty, not just that the defendant is guilty as charged, but that the act he is charged with is properly criminalizable.

Remember, the Fifth Amendment right not to incriminate oneself was not intended to protect the innocent. It emerged from conflict between British subjects and the British ecclesiastical courts--Star Chamber and the Court of High Commission--as a protection for those who were guilty as charged under unjust laws: the Church of England's laws against heresy. Insuring that certainty standard punishments do not infringe on this class of protection requires an expansive concept of what might not be properly criminalizable (sex, drugs and rock and roll; guns, abortion and any gray areas of self-defense; anything that could conceivably be protected by constitutional, common or natural law). The whole idea is to draw the necessary distinctions so that we can keep those we are not certain should be punished from suffering by being grouped with those we can be certain about, allowing us to go hard after those we are certain should be punished. To accomplish this, all grounds on which punishment could be errant must be considered.


The certainty standard

How do we formulate a true certainty standard of guilt? We can start with the present standard of guilt in criminal cases, which constitutes a nominal certainty standard. The only thing that keeps it from being a true certainty standard is the co-existence of an explicit less than certainty standard.

Most lay 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 throws our jury system into the realm of non-ideal moral theory. Errors of moral reasoning are imposed and as a consequence, certain archetypal errors will tend to ensue. By following these errors we can track how they cause decision-making to diverge both from an optimal husbanding of value and from jury instructions.

The "no reasonable doubt" nominal certainty standard of guilt inevitably devolves in practice into far less than a true certainty standard. Jurors are prone to in some degree 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 biggest problem with it is that, since it is not a true certainty standard, it does not enable the punishments that a true certainty standard enables. Additionally, because this 95% standard results from a conflict between jury instructions and moral sense, the incidents 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 conflict between jury instructions and moral sense can be eliminated by augmenting the nominal certainty standard with a less than certainty standard of guilt (such as an explicit 95% standard). Then jurors can account the likelihood that a defendant who cannot honestly be found certainly guilty is nevertheless almost certainly guilty by finding him guilty under the 95% standard. Jurors might still find a conflict between their moral sense and jury instructions when they can only honestly find a defendant 90% guilty, but on the certainty standard, conflict is eliminated. This transforms the nominal standard into a true certainty standard, so long as jurors are able to think straight. The law no longer forces them to think crooked. Unfortunately, not all jurors are capable of thinking straight and unanimity requirements or near unanimity requirements are not going to weed out all the errors. Thus achieving a true certainty standard when the reasoning capacities of jurors are random variables with very high variance would require some automatic judicial review.

The most efficient answer here would be to require a jury's verdict of certainly guilty to be seconded by the presiding judge in order to be sustained. If that is not enough, certainty convictions could be admitted to automatic review to make sure there are no clear instances of actual doubt. Given how the system of dual verdicts would greatly reduce innocent pleas by guilty parties (the vast majority of criminal cases at present) the judicial resources would be available to insure the integrity of certainty verdicts, placing a true certainty standard very much within reach. Once it is in hand the proposed reforms are enabled. We can drop the anvil on those who plead innocent and are found guilty of any crime that is certainly properly criminalizable and we can drop the blade on all seriously violent or recidivist criminals.

At the same time, an explicit 95% standard of guilt would be a less capricious way of achieving a less than full certainty standard than our present nominal certainty standard standing alone. Fewer defendants would get off because of race, class or other sympathies and because both yield the same degree of certainty, the explicit 95% standard could slip right in as the new basic standard of guilt. It would be wrong, however, to use the same sentencing guidelines for punishing those found guilty under the explicit standard as have been developed for our current 95% standard. The current guidelines apply to both the certainly guilty and to the not quite certainly guilty. Hence they are harsher than we would want to apply to the not quite certainly guilty alone. Once these groups have been separated, moderated guidelines should apply for the new 95% standard. In this way too, harms to innocents would be lessened.


A third standard of guilt for acts of terrorism and for the most serious serial crimes

Similar reasoning applies in the other direction. When the risk posed by mistakenly freeing the guilty becomes astronomical, as is the case with terrorism, serial murder and serial sex crimes, it is appropriate to apply a lower standard of guilt with lower penalties, aimed primarily at being able to monitor the defendants activities, so that terrorist threats can be interdicted and serial crimes prevented or at least not gotten away with. Suppose prosecutors are only able to prove with 90% certainty that Theodore Kaczynski is the Unabomber. Must a 90% Unabomber 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?

A full accounting of value 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 can be called for 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 one really untenable aspect of the internment of Japanese Americans in W.W.II. Harm to innocents was not minimized, as with the failure to protect vacated property.)

Generalizing to logical conclusions, it might seem that the way to go is to allow infinitely many distinctions between degrees of guilt by having the jury return a percentage likelihood that the defendant is guilty as charged then have the laws describe, for the crime charged, whether there should be punishment and what it should be. This would allow jurors to be unbiased in a sense in their assessment of likelihood of guilt, since they are not deciding whether a particular level of certainty is met based on whether or how they think the defendant should be punished. But actually, this particular "bias" is a necessary part of the judgment that justice requires jurors to make. Their job ultimately is not to come up with a degree of certainty of guilt. It is to decide whether someone should be punished. Estimating degrees of certainty of guilt is very subjective. If such estimates were separated from the question of whether a defendant should be punished they would become un-moored. Thus the ideal is to have jurors hand down verdicts on multiple standards of guilt with knowledge of what kinds of punishments apply to the different guilty verdicts. Certainty and near certainty verdicts (100% and 95%) would be sufficient for most crimes, with a lower standard added only for terrorist-like crimes.

It is time to stop lumping the possibly innocent with the certainly guilty. We could smash crime while doing much less harm to innocents. I 've got the ballot measure ready to go.

Alec Rawls is pursuing a Ph.D. in economics


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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Date Last Modified: 8/27/99
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