Moral Dilemmas of a Prosecutor and Defense Attorney: Which is Worse?

As a criminal defense attorney, there is always the possibility that you could be

letting a guilty person go free. As a criminal prosecutor, there is the possibility that

you could be putting an innocent person in prison. Which is worse? French

Enlightenment writer and philosopher, Voltaire, wrote in 1747 that “it is better to run

the risk of sparing the guilty than to condemn the innocent." William Blackstone, an

English jurist, justice, and former member of the Parliament of the United Kingdom,

wrote in 1769 what’s commonly referred to as “Blackstone’s Ratio:” that “it is better

that ten guilty persons escape than that one innocent suffer.” This echoes Voltaire’s

view that protecting the innocent is more important than punishing the guilty, even if

it means letting some criminals go free. Are these historical figures right?

My intuition says that they are; that putting an innocent person in prison is

worse. That is, it is worse to convict an innocent person than to acquit a guilty one. I

could argue about the effects of wrongful convictions; that they take away a person’s

dignity, time, freedom, and opportunities, and are very difficult to overcome when

re-entering society. And these things are important to consider. However, in this blog

I want to focus on the thing nobody really talks about: that in both cases, the guilty

person is free, but in only one of those cases is it guaranteed that an innocent person

is harmed.

In the case of a guilty person going free, there is no guarantee that they would

re-offend. There is no guarantee that someone would be harmed. On the other hand,

in the case of an innocent person being convicted, not only is the guilty party still out

there, but it is guaranteed that somebody is harmed.

Let’s examine this argument with an example. Consider a case where someone

is accused of murder in the first degree. That is, the intentional, deliberate, and

planned killing of another person. Most would agree that it would be bad to let

someone who has committed this crime be free to roam the streets (at least if the

murder was unprovoked and/or a repeated offense).

If a person guilty of this crime was to be acquitted (found “not guilty”), they

could live the rest of their life without committing another crime or hurting anyone

else. It wouldn’t be guaranteed that anybody else would be hurt as a result of their

freedom. However, if a person innocent of this crime was to be convicted (found

“guilty”), the guilty party would be free and that innocent person would be harmed.

One of the most important legal principles of our justice system is that when

one is being accused of committing a crime, they are innocent until proven guilty. The

assumption is that the defendant is innocent and the burden of proof to establish that

they are guilty beyond a reasonable doubt is on the prosecution. When unsure of

someone’s guilt, it is better to let them go than to put them in prison “just in case.” In

the 1895 case Coffin v. U.S., the U.S. Supreme Court even quoted a Roman official who

stated, “rather let the crime of the guilty go unpunished than condemn the innocent.”

Some might ask, “What about getting justice for the victim?” To that I answer,

of course getting justice for victims is important. But putting an innocent person in

prison just so there is someone to blame for a tragedy is not justice. It is injustice.

Again, based on the above arguments, it seems to me that putting an innocent

person in prison is worse than letting a guilty person go free. From that it follows that

when one is unsure of a defendant’s innocence, it would be better to run the risk of

letting them go than to put them in prison just in case. What do you think?