Proof Beyond a Reasonable Doubt: A Balanced Retributive Account

• Author: Alec Walen
• Pages: 355-446

Proof Beyond a Reasonable Doubt: A Balanced Retributive Account Alec Walen * TABLE OF CONTENTS Introduction .................................................................................. 356 I. Background on the BARD Standard—Groundwork .................... 362 A. The Legal Background of the BARD Standard ..................... 363 B. The Lessons of History and Epistemological Nonsense ........ 367 C. The BARD Standard in Contemporary Practice .................... 373 II. The Failure of Maximalist Arguments ......................................... 376 A. Accidental Versus Deliberate False Convictions ................... 378 B. Equality and Fairness ............................................................. 381 1. The “Equal Best” Standard and Weighty Evidence ........ 382 2. The Argument from Fairness ........................................... 384 C. The Social Contract ................................................................ 386 D. The Distinction Between Causing and Allowing Harm ......... 390 E. The Expressive Significance of Condemnation ..................... 395 III. Consequentialist Rejection of the BARD Standard ...................... 400 A. Preliminary Remarks on Consequentialism ........................... 403 B. Primary Consequentialist Considerations for the SOP in Criminal Cases ........................................................... 406 Copyright 2015, by ALEC WALEN. * This Article is a more thorough exploration of ideas that I have previously explored. See Mattias Kumm & Alec D. Walen, Human Dignity and Proportionality: Deontic Pluralism in Balancing , in PROPORTIONALITY AND THE RULE OF LAW: RIGHTS, JUSTIFICATION, REASONING 67 (Grant Huscroft et al. eds., 2014). Special thanks to Erin Islo, Khushboo Shah and Adam Klein for their research help on this project, and Paul Baier, Charles Barzun, Nick Beckstead, Corey Brettschneider, Tim Campbell, Kim Ferzan, Georgi Gardiner, Stuart Green, Adil Haque, Debbie Hellman, Douglas Husak, Leora Katz, Adam Kolber, Hallie Liberto, Mattias Kumm, Larry Laudan, Seth Lazar, John Leubsdorf, Maggie Little, Dan Markel, Jeff McMahan, Olivier Moreteau, Alain Pé-Curto, Walter Perron, David Plunkett, Emily Podhorcer, Ralf Poscher, Re’em Segev, Holly Smith, Rolf Stürner, Larry Temkin, Silja Vöneky, Thomas Weigend, and Yuan Yuan. Thanks also to the audiences at the University of Virginia School of Law, LSU Paul M. Hebert Law Center, the University of Amsterdam School of Law, the Max Planck Institute for Criminal Justice, the KoRSE Program at Freiburg University, and the ICON-S Conference 2014 for their helpful discussions and comments on earlier versions of this Article. 356 LOUISIANA LAW REVIEW [Vol. 76 1. Deriving the Equation for the SOP .................................. 406 2. Objections and Replies Regarding the Use of Numbers ...................................................................... 408 3. Filling in Values for the SOP .......................................... 411 C. Variable Standards of Proof ................................................... 416 D. Drawing Moral Lessons About Consequentialism and the SOP ............................................................................ 423 IV. A Retributive Justification for the BARD Standard ..................... 426 A. Overview of the Retributive Framework for the BARD Standard .......................................................... 426 B. What is New in the New Retributive Solution ....................... 430 C. The Intrinsic Value of Deserved Punishment ........................ 432 D. The Relative Weakness of the Intrinsic Value of Punishing the Guilty Compared to the Harm of Punishing the Innocent ............................................................................ 432 E. The Retributive Balance and the BARD Standard ................. 434 Conclusion .................................................................................... 438 Appendix ...................................................................................... 439 INTRODUCTION The standard of proof (“SOP”) for criminal convictions in the United States—and in many other jurisdictions 1 —is proof beyond a reasonable doubt (the “BARD” standard). The Supreme Court held that this standard was a constitutional requirement in 1970 in In re Winship . 2 The standard, which is customarily thought to require the fact finder to be at least 90% 1. See infra notes 29–34. 2. 397 U.S. 358, 364 (1970). Winship was not a unanimous opinion, but all of the Justices agreed on the substantive conclusion. Justices Burger and Stewart dissented on the ground that “[t]he original concept of the juvenile court system was to provide a benevolent and less formal means than criminal courts could provide for dealing with the special and often sensitive problems of youthful offenders.” Id. at 376 (Burger, J., dissenting). They avoid requiring the BARD standard, then, by distinguishing convictions in juvenile courts from “criminal” convictions. Justice Black also dissented, but his reasons were grounded in concerns about judicial restraint. Id. at 385–86 (Black, J., dissenting). Substantively, he agreed that “a strong, persuasive argument can be made for a standard of proof beyond a reasonable doubt in criminal cases—and the majority has made that argument well.” Id. at 385. 2015] PROOF BEYOND A REASONABLE DOUBT 357 certain of the defendant’s guilt to convict, 3 is now part of American legal folklore. But neither the BARD standard’s proper interpretation nor its theoretical justification are settled and clear. 4 This Article aims to address both of these deficits. To address these deficits, it will be helpful to have a clear sense of what an SOP does. Understood most generally, an SOP provides an agent with a practical standard for determining that an action is sufficiently likely to be objectively justified for her to permissibly and blamelessly perform it. 5 This concept applies not only to judicial actions, such as convicting a criminal defendant, but to any action that an agent might perform, and that might, depending on facts that are not known to her, be objectively justifiable. That is, it applies not only to convictions but also to acts such as self-defense. It also implies both that an agent can act permissibly and blamelessly even if she does what is objectively unjustifiable, and that she can act impermissibly and in a way that warrants blame even if she does what is objectively justifiable. The focus in this Article, however, will be determining when criminal convictions are impermissible because the likelihood of punishing an innocent person is too high. To be clear, punishing an innocent person wrongs that person. Nonetheless, if the state’s fact finder has found him guilty using the morally correct SOP, then the state acts permissibly and blamelessly. It acts permissibly and blamelessly, despite the unfortunate result, because its agents took all the care that they were required to take. 6 Thus, the challenge for a theory of the SOP for a criminal conviction is to determine: (1) how stringent the SOP must be before a fact finder meeting the standard acts 3. See, e.g. , Christopher Slobogin, Dangerousness and Expertise Redux , 56 EMORY L.J. 275, 306 (2006). 4. One dispute that this Article does not pursue further concerns the standard for mixed questions of law and fact. See United States v. Gaudin, 515 U.S. 506, 522–23 (1995) (finding that courts must use the BARD standard to answer mixed questions of law and fact); but see Youngjae Lee, Reasonable Doubt and Moral Elements , 105 J. CRIM. L. & CRIMINOLOGY (forthcoming 2015) (where the law involves making vague moral judgments, such as that a person’s actions were “cruel,” the state should not have to meet the BARD standard). 5. See T.M. SCANLON, MORAL DIMENSIONS: PERMISSIBILITY, MEANING, BLAME 49–52 (2008) (treating permissibility as an action guiding term). Permissibility and blame can come apart; it can be permissible to do the right thing for the wrong reason and thereby merit blame. But such worries are outside the scope of this Article. 6. If the state discovers later that the person was actually innocent, the state should recognize that it owes compensation for the wrong done. But this compensation is analogous to a kind of strict liability debt for faultless wrongdoing, and one should not interpret the state’s owing compensation as implying that the state was at fault for the wrong done. 358 LOUISIANA LAW REVIEW [Vol. 76 permissibly, even if she mistakenly convicts the innocent, and (2) whether the BARD standard satisfies that level. Given that the BARD standard is well-settled law, it may seem unnecessary to investigate it. But it takes just a little digging in history to show that it is not so obvious how to set the right SOP for a criminal conviction. Many people associate the BARD standard with Blackstone’s ratio, according to which “it is better that ten guilty persons escape, than that one innocent suffer.” 7 But the ten-to-one ratio is just one of a range of positions that has been taken by notable thinkers and politicians. On a much more cautious note, Moses Maimonides wrote: “[I]t is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death.” 8 Voltaire, who saw the options as more evenly balanced, declared “that it is better to risk saving a guilty man than to condemn an innocent.” 9 And Otto von Bismark is reported to have said that “it is better that ten innocent men suffer than that one guilty man escape.” 10 These remarks suggest an SOP range going from essentially 100% certainty to something closer to a 10% possibility. 11 Assuming, contrary to some case law, 12 that some sort of quantitative measure should guide jury considerations, one must determine which measure is best. 7. 4 WILLIAM BLACKSTONE, ARTICLEARIES *358. This and the next three citations can all be found in Alexander Volojh, N...