Legal Commentary

The last month I've been developing a bit of an SSRN-induced brain crush on epistemologist Larry Laudan, who I've not met before, but whose recent work (all posted on SSRN) ought to be pressing the criminal justice commentariat to re-think a lot of our assumptions when we talk about trial errors and risk-risk trade-offs between Type I errors and Type II errors.  Laudan's work seems to be mining the rich vein of material earlier espied by UVA's Darryl Brown in his important work on cost-benefit analysis in criminal law, a field that also incorporates the Sunstein-Vermeule death penalty paper.  Here's a very short introduction to Laudan's intellectual agenda that he just put up entitled "The elementary epistemic arithmetic of criminal justice." And here's a link to "Deadly Dilemmas," a sharp short essay he wrote with Ron Allen from Northwestern that was part of a symposium.

Laudan's concern is to show us what we're doing when we consider risk-risk tradeoffs. As he writes, "The recent spate of exoneration studies puts us in a position to say that the lifetime risk of being falsely convicted of a serious crime is less than one-tenth of one percent. By contrast, data from the BJS suggest that the lifetime risk of being a victim of a serious crime is about 83%. In short, the average American is at least 90,000% more likely to be seriously victimized than falsely convicted of a serious crime. (I should add that, because I have interpreted the figures very unfavorably with respect to my own hypothesis, the more likely ratio of these risks is about 8,000:1, in which case one is 800,000% more likely to be a crime victim than the victim of a false conviction.)"  His major point so far as I can tell is to carefully demonstrate how the risk of being a victim of a serious crime by a criminal who's been  falsely acquitted is far greater than the risk of being falsely accused of a serious crime, and that the current "innocentristic" approach to death penalty reform and other criminal justice issues may be obscuring the normative importance of that fact.

Having read only a few papers by Laudan, my sense is  that there are two areas that need amplification.

First, Laudan's number-crunching doesn't seem especially sensitive to the distributive patterns of these competing risks. In light of the prevalence of intra-racial crime, I can imagine that there's some story that might justify this silence. After all, if it turns out that the average young black male of the inner-city faces far greater likelihood of being victimized of a serious crime than being falsely accused of a serious crime, he might have good reason to see various criminal procedure and evidence rules shift in the direction Laudan proposes. On the other hand, if that story is not true, and in fact it's the old white woman who faces much greater likelihood of being victimized instead of being falsely accused, but the numbers don't look as powerful for the young black male, I can imagine that something more needs to be said before we all embrace the direction of Laudan's prescriptions.

The other thing that Laudan's papers, at least the ones I read, seem to occlude is the nature of the risk associated with the kind of crimes one may be victimized by. To my mind, the analysis Laudan is providing is not quite sufficiently granular.  For example, Laudan argues that we can derive using some public stats,  a "plausible measure of the gravity of a false aquittal." Using his calculations, he notes that "for any given false acquittal for a serious crime, we can anticipate >4 violent crimes that would have been prevented [during the time the offender would otherwise have been incarcerated] had the legal system not decided to let the guilty felon out of its clutches, either by explicit acquittal or by a dropping or dismissal of charges against him. Of those four serious crimes, 0.1 will be a homicide, 0.2 will be rapes and 3.7 will be armed robbery or aggravated assault."  Laudan seemingly lumps these crimes together to create a "serious crime" category, which should be compared to the risk of being falsely convicted of one of these serious crimes.

The problem is that I can imagine many people who would sooner suffer a aggravated assault or armed robbery  than be  falsely convicted of those particular "serious" crimes.  Not because  those crimes are easy to bear generally, but because the losses from those crimes may be insured and because the experience of those crimes is, from a victim's perspective, likely to be short. One can go about one's life afterward, in many cases, relatively normally.  By contrast, a false conviction for assault or armed robbery will, depending on the sentence, probably be much more lasting in terms of duration, stigma or other hardships for the falsely convicted defendant. Looking at rape and murder, many would view being victimized of those crimes as devastating, even if not identical. Additionally, being falsely convicted of rape or murder would also be incredibly difficult to bear, though probably less difficult.  So my sense is that the conclusions Laudan draws would be more powerful if we could isolate the nature of the risks being compared in a more particularistic way.   What Laudan's CBA should look at is the relevant risks associated with each of those crimes if we are to be persuaded that the risks we are trading off are remotely commensurable and that we need to contemplate more procedural rule changes.

**Btw, the title for the post comes from Laudan via Yogi Berra.