Protecing the Innocent - From Society and Criminals

People who talk to me realize that I'm a rabid ACLU-type when it comes to pre-trial protections.  They thus infer that I'm a "softie" when it comes to crime.  That couldn't be farther from the truth, and those people who think they have me pegged are always shocked to learn that I believe in the longest sentences imaginable.  Why?

A maxim of American jurisprudence is that it's better for ten guilty men to go free, than for one innocent man to be convicted.  Whether we apply the principle is one thing, but it's something to aspire to.  We should create fair procedures that convict the guilty and free the innocent.  This is uncontroversial.

If it is truly is better that ten guilty men go free than for one innocent man to be punished, as society should seek to avoid the harming of the innocent, shouldn't this same principle apply to sentencing?  Victims of crime, after all, are the innocent.

Let's say that someone, after receiving a fair trial, is convicted of murder.  Should he ever be released from prison?  Some would say that he might be reformed, and therefore he should be released after showing remorse and being rehabilitated.  It's true that he murdered someone. Someone who murders someone is so morally depraved that there's no way to know  he won't do it again.  Shouldn't we, then, error on the side of over-sentencing the murderer? 

I think we should.  Just as it's better that ten guilty men go free than one innocent man be convicted, it's also true that it's better ten criminals spend too much time in prison, than for one person to be victimized by them. 

After all, the application of the maxim to pre-trial and sentencing are aimed at the same goal - protecting the innocent from harm.

Comments

[KipEsquire]

Someone who murders someone is so morally depraved that there's no way to know he won't do it again."

How is that different from those who say, "Anyone who would commit murder is by definition mentally disturbed and should therefore be in a mental hospital rather than a prison..."?

[Mike]

Kip, I view moral depravity and mental disturbance differently. The mind is different from the conscience. Should I view them as the same thing?

[Aaron]

How do we weigh oversentencing versus victimization - that is, how do we interject proportionality? Is it better that ten petty shoplifters spend life behind bars, such that a storekeeper doesn't suffer the loss of a package of chewing gum?

[Mike]

Aaron, yes those are factors I weigh in my own view. My own view is that certain crimes (like child molestation) require no second chances, where as most property crimes should allow extra chances.

[Windypundit]

So...victimless crimes like drug use or prostitution should carry no sentence because there is no chance that another victim will be harmed, right?

[Mike]

Windy, Here's my view: Very few things should be criminalized, but those things that are criminalized should be punished severely. Prostitution should not criminalized, though if a prostitute knows she is infected with HIV, she should be sentenced as anyone else who recklessly injures another. Drug use should not be criminalized, but druggies should not be allowed to roam the streets harassing people. Etc.

[Aaron]

If we're taking recidivism into account, sure, let's do that. But our nation's sentencing policy - for that matter, the notion of incarceration as having any rehabilitative value - is largely based on guesswork. Sentences which don't add to society's protection (either because the sentence is too short or the offender unlikely to reoffend), don't deter others (or, at least, the others who most need to be deterred), don't rehabilitate the offender (or are punitive to the point of being counterproductive to rehabilitation), and go beyond any sense of reasonable punishment? From a purely selfish perspective, beyond an questionable contribution to my security from crime, they waste my tax dollars.

[mythago]

Here's my view: Very few things should be criminalized, but those things that are criminalized should be punished severely.

So an act is either not wrong, or it is very wrong?

[markm]

mythago: "Wrong" and "illegal" are two different things. The law is far too blunt an instrument to be used to right all wrongs.

[Aaron]

With the alternatives being... lawsuits? Nope, that would be the law again. Combat by champion? Blood feuds? Solutions that are both cool [i]and[/i] libertarian. ;-)

[mythago]

mark, Mike seems to be saying that either an act is not wrong (we should not criminalize it) or it is terribly wrong (we should criminalize it, and punish those who break the law harshly).

[Mike]

Mythago: Just because something is "wrong" does not mean it should be criminalized. I think a lot of things are wrong, e.g., adultery. I don't think adultery should be criminal, though.