ever take the time to come to terms with what they are really defending.My post was the first part of an answer to that particular question. My theme was uncertainty, that when you get right down to it, we can never really know, and some things necessarily follow. I quoted the great lawyer Irving Younger from a short article he had in the first issue of the Georgetown Journal of Legal Ethics.
The best of all guides to thinking about anything is Oliver Cromwell's adjuration to the General Assembly of the Church of Scotland, "I beseech you, in the bowels of Christ, think it possible that you may be mistaken." Life and the affairs of the living are so tangled, the world not only stranger than we imagine but stranger than we can imagine, that all questions are conundrums, no answers "correct." Is it certain that parallel lines never meet? No. Does water freeze at thirty-two degrees Fahrenheit? Only probably. Shall I marry? Who can say.This morning, Bill (who apparently drops over here whenever I link to his stuff) put up a comment on that post.
The premise that human beings are fallible is incontestable. The conclusion that we can't ever know if Defendant X did it is absurd. Every practicioner knows that, in the great majority of cases, factual guilt isn't in doubt and isn't even contested.I started to reply with another comment, but decided to do it this way, instead.
There's no question we can be certain. There's no question we often are. Being certain isn't the same as being right. As a matter of epistemology, there's a gap between our certainty and what may be, factually, true. That theoretical space sometimes even shows up in the real world of criminal law.
The DNA shows it was a mistake. The confession was false. The guilty plea was to avoid risk and was a straight plea because the jurisdiction or the court or the prosecutor wouldn't accept an Alford plea. Overwhelming evidence was there but it wasn't him.
All those things happen. Some think they happen a lot. Some think it's incredibly rare. But they happen. And although we can argue about the frequency (and nobody will ever really know what the frequency is), one time makes the case. To pretend it can't happen and doesn't happen is at best disingenuous.
The only real question is what should follow from the possibility of error even in those cases where it seems inconceivable.
Here's the next paragraph from Younger.
And yet the world's work must be done. One Oblomov is enough. Thus we learn a conventional certitude, acting as though all were light by blinking the shadow. A simple proof demonstrates that parallel lines meet, but, on the assumption that they do not, the architect builds the skyscraper. Despite extensive knowledge of statistical mechanics, the engineer designs the refrigerator to maintain a constant temperature of thirty-one degrees. 'Le coeur a ses raisons que la raison ne connait point,' and families are raised.We act, we must act, the only sensible way to act is as if some things were in fact true - even if we can't know (and even if we think we do).
Fair enough.
So we can accept as factually true that Bill's Defendant X did it even if our absolute knowledge that he did is imperfect and might be wrong. There's no rational alternative to that. And if what X did is criminal, and if some sanction is appropriate, and if it's really awful and the sanction might then fairly be severe, and if it's something that's likely to be repeated and makes the person who did it a danger to the community . . . .
Well, then, yeah. And if you're one of those folks who believes that eradicating people who've done terrible things is ok. Not merely separating them, not treating them, not isolating them, but eradicating them. Not just from our awareness but from our world. If you believe that execution is morally right and good public policy. If you believe that killin' is OK when it's our killin' under some sort of legal justification in a system you trust.
But see, for me there's that nagging doubt, that Cromwellian uncertainty.
I beseech you, in the bowels of Christ, think it possible that you may be mistaken.Maybe not about the fact. Maybe just about the response. Perhaps your moral sense isn't as perfect as you imagine. Perhaps the cost of breaking a few eggs is too great to justify the omelet. Or maybe this is the odd case where the moral balance doesn't come out where you might imagine.
This isn't about the numbers, about whether it's better that some number of the guilty go free than that one innocent be convicted or punished. (Or, in the alternative formulation, it's better that some number of innocents be convicted or punished than that one guilty person goes free.) It's not about ratios and how sure you have to or ought to be and whether we can quantify reasonable doubt.
Ultimately, of course, Otis is speaking of the death penalty, about which he and I forcefully disagree. He would inflict it far more than we do. If would prohibit it in all cases. He's sufficiently sure that he (we) can tell often enough who deserves killing. I don't doubt that there are some people who might. I just don't think we can ever know with sufficient certainty who they are.
And that doesn't begin to address either the underlying morality or policy or practicality of whether we should be doing it. Or what it says about those of us who would.
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