Better to Let a Guilty Man Go Free?

The thought that we prefer to let the guilty man go free rather than convict the innocent is pretty axiomatic in criminal justice parlance, but do we really believe that?

Nicholas Scurich (University of California, Irvine) has posted Criminal Justice Policy Preferences: Blackstone Ratios and the Veil of Ignorance (Stanford Law & Policy Review, Vol. 26, p. 23, 2015) on SSRN.

Here is the abstract:

Erroneous convictions or erroneous acquittals are an inevitable aspect of the criminal justice system. Jurists have historically considered errors of the former type to be more egregious, while college undergraduates seem largely indifferent between the two types of error. This article reports the results of an original empirical study that elicited criminal justice error preferences from an online sample of over five hundred adult United States citizens. Consistent with previous research, participants were asked, as a matter of policy, which type of error is worse and to what extent that type of error is worse than the other. Participants’ error preferences were then elicited beneath a Rawlsian veil of ignorance. The veil of ignorance “universalizes” judgments by forcing individuals to evaluate a policy without knowledge of how it would affect him or her personally. Thus, participants were asked whether they would personally prefer to endure the consequences of an erroneous conviction vis-à-vis an erroneous acquittal. As a policy matter, a majority of participants indicated that erroneous convictions are worse than erroneous acquittals, though there was considerable variability as to how much worse. Over 25% of participants effectively switched their preference when the implications of such a policy applied to them personally. These findings have implications for the administration of substantive law and criminal justice policy, as well as policy discussions more generally.

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