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Course: Wireless Philosophy > Unit 8
Lesson 5: Proportioning verdicts and punishments to evidenceProportioning verdicts and punishments to evidence
In this wireless philosophy video, Barry Lam (Vassar College, Hi-Phi Nation podcast) considers whether jurors in criminal cases should be able to choose from a range of verdicts, rather than just between Guilty and Not Guilty.
View our punishment learning module and other videos in this series here: https://www.wi-phi.com/modules/punishment/. Created by Gaurav Vazirani.
Video transcript
[Music] Hi, I’m Barry Lam, Associate Professor
of Philosophy at Vassar College, and producer of Hi-Phi Nation, a show about philosophy
that turns stories into ideas. In this video, we’ll ask whether
jurors in criminal cases should be able to choose from a range of verdicts,
not just between Guilty and Not Guilty. George was walking home one night when
someone attacked him and stole his wallet. George didn’t get a
good look at the person. But police found footage of the incident, and facial recognition software
determined a 60% match between the assailant’s grainy image and James
Borden, a man with a record of robberies. At Borden’s home, the police found a
black hoodie and an empty brown wallet. Borden had no alibi. He claimed to be home alone all
night and that the wallet was his. Based on the evidence,
the prosecutor figured there was an 85% chance that
Borden was the perpetrator. 85% might sound pretty high,
but if this case went to trial, Borden could just as easily
be convicted as acquitted. That’s because the burden of proof in
an American criminal trial is very high: it’s proof beyond a
reasonable doubt. And a reasonable person
can doubt Borden’s guilt. True, the wallet looked like George’s,
but brown wallets are very common. A 60% facial recognition match is good, but that means there’s a 40%
chance the image isn’t Borden’s. And black hoodies are extremely popular. The 85% chance Borden is guilty
still leaves a 15% chance he’s innocent. In the U.S. criminal justice system,
trial verdicts are all or nothing. The defendant is either
unanimously declared Guilty beyond a reasonable doubt and punished,
or declared Not Guilty and goes free. But why should the legal system
force a Guilty or Not Guilty verdict when there’s significant uncertainty about
whether the defendant committed the crime? Why shouldn’t judges and juries
be able to issue verdicts that better reflect their true level of
confidence in the defendant’s guilt? Scotland does something close to this. Scottish jurors choose from three verdicts:
Guilty, Not Guilty, and Not Proven -- where Not Proven means
that, given the evidence presented, you have reasonable doubt
about the defendant’s guilt, but also reasonable doubt
about their innocence. And why stop at three options? Some philosophers have proposed four: Definitely Guilty, Probably Guilty,
Probably Innocent, and Definitely Innocent. You could be even more precise and
issue verdicts of guilt by percentage. There are good arguments for giving
jurors a wider range of verdict options. It allows justice to be
carried out more honestly. It also better reflects how we
make decisions under uncertainty in our everyday lives, like
when we choose a career, buy insurance, or
navigate relationships. We treat friends we know did
something harmful to us differently from friends who probably
did though we can’t prove it. And we treat both of
these kinds of friends very differently from those
we know to be innocent. Treating someone who probably
robbed you the same as someone who definitely didn’t seems
unwise and morally wrong. Yet it’s what our current
legal system asks jurors to do. A defendant
whose guilt is likely but not beyond a reasonable
doubt is ruled Not Guilty -- the same verdict given to a
defendant who’s conclusively innocent. Both defendants are
set free, but both are also stuck with
the stigma of an arrest record. This might be appropriate
treatment for someone who’s probably though
not provably guilty, but it seems unfair to forever stigmatize
someone who’s provably innocent. Instead of treating every defendant
as belonging to one of two categories, proportionate verdicts could lead to
incarceration only for the definitely guilty, mere supervision for the probably guilty, a full expunging of the
records of the probably innocent, and official apologies and
restitution for the definitely innocent. Or the system could get even more precise: if punishment for assault and
robbery is 100 days in prison, then someone like Borden, who’s
85% likely to be the perpetrator, might receive 85 days in prison, rather
than either none or the full hundred. But while such a justice system has
advantages, the objections to it are many. Imagine Lyla and Maria are the only
people present when Paul is murdered. Evidence proves there was only
one murderer but not who did it, so there’s a 50% chance
each woman is the killer. Our current system
would set both women free, since there’s reasonable
doubt of guilt for each. This is unjust: the true murderer wouldn’t receive
any of the punishment she deserves. But what would happen
in a proportionate system? Here's one way it could go: If the full sentence
for murder is 40 years, Lyla and Maria would be
punished proportionately, each incarcerated for 20 years. Although the actual killer
still escapes full punishment, at least she’s sure to get some
of the punishment she deserves. Meanwhile, though, an innocent person
is sure to spend 20 years behind bars! To most people, incarcerating
an innocent person is significantly more unjust than
letting a guilty person go free. The injustices of
the alternative system seem far worse than the
injustices of the current one. Here’s another objection. In our current system,
the high standard of proof means that if you
don’t commit a crime, it’s generally unlikely
you’ll end up in prison. So the easiest way to
avoid criminal conviction is to follow the law -- exactly
what we want people to do. In the alternative system, though,
following the law wouldn’t be enough. You’d also need to
curb all activities that can count as circumstantial
evidence of guilt -- like wearing clothes
associated with criminal offenders or spending time
alone with no alibi. There’s no societal benefit
to preventing these activities, but in a system where any evidence
can lead to some time in prison, people have strong
incentives to avoid them. Ultimately, there seems to
be a strong argument against systems that proportion verdicts
and punishments to evidence. But here’s the catch: In America,
this actually IS our system. Only 5% of criminal cases go to trial. Instead, most cases are
settled through a plea bargain. For the Borden case, that
means that the likely outcome would be a plea bargain
negotiated by the parties, where Borden gets about
85% of the full sentence, reflecting the 85%
certainty of his guilt. And this would happen regardless
of whether Borden is actually guilty. So if proportionate punishment
is unjust, it seems we must reject, not just some hypothetical
system, but the one we live in today. What do you think? [Music]