In all these discussions pitting innocent men getting imprisoned vs guilty men going free, one factor rarely ever comes up: innocent men (and women and children) who fall victim to crime.
IMO, one of the most valuable roles of the justice system is to be a deterrent. "If you commit a crime, you will be put in jail, so don't even think about it." If you've ever witnessed schoolyard bullying in action, that's exactly what every single day in adult life would also look like, if not for the justice system. By deterring would-be-criminals, it keeps innocent people safe, without even having to send the would-be-criminals to jail.
Except that it isn't a perfect deterrent. Crime is still a major factor in society. To give just one example, 20% of women in America experience sexual assault at some point in their lives. And then there's robbery, assault, manslaughter, homicide... Some crimes are committed by those who're mentally unstable, or in the heat of the moment. But the vast majority are committed by criminals who are fully aware of what they are doing. People who would never do it if they knew for sure they would go to jail, but think they have a good enough chance of getting away with it. They either think they won't get caught by the police, or even if they did get fingered, they can find some loophole or weakness in the prosecution's case that would enable them to beat the rap. And the likelihood of the latter really comes down to how high the burden of proof is. A guilty person is much more likely to get convicted in a legal system where "n = 5", as opposed to "n = 10."
Psychology studies show that punishments are most effective as deterrents when they are consistent, immediate and guaranteed. The greater the variance, the better the chances of someone getting away with it, the less powerful the deterrent effect will be. Which means you're going to have more victims of crime. More victims of assault, kidnappings, rape and murder.
Which is really what the trade off should be all about. "It's better that N innocent people fall victim to crime, than for 1 innocent person to go to jail." Now what would your answer for N be?
Is it better to have the atrocities committed upon a person by a stranger, or by their government, which is charged to protect them?
Getting arrested, tried, and imprisoned can be a brutal process all on its own. Losing years or even the entirety of the remainder of one's life to imprisonment is (for me, at least) an extremely scary thought. The sort of treatment you can expect in prison is absolutely dehumanizing. You aren't a name anymore, you are a number. You have no more freedoms, no choices, and unless you have someone on the outside financing your entertainment, you're at the mercy of a very limited library of options for which the prison has absolutely no incentive to improve upon.
I have a father and a brother both in prison right now, and it is absolutely not an experience I would want to wish on any innocent person, even at the risk of criminals going free.
Is it better to have the atrocities committed upon a person by a stranger, or by their government, which is charged to protect them?
Let's put this to a test. Would you rather have 2 family members get killed in a drive-by shooting? Or would you rather have 1 family member get executed by the state? And I don't mean this as a hypothetical. Picture your mom/dad/siblings, imagine them getting killed, and can you honestly say that it's preferable for 1 additional family member to get killed as long as the government isn't involved?
>Would you rather have 2 family members get killed in a drive-by shooting? Or would you rather have 1 family member get executed by the state?
I think your test is quite misleading since you are moving the goal posts to "It's better for criminals to kill two people than to wrongfully execute an innocent man" which is an entirely different statement from "It's better to free two criminals than to execute an innocent man".
Sentencing all those suspected of a murder will not reduce the murder rate by an equal amount, in fact you will end up with a larger total of wrongfully killed men.
From the utilitarian perspective you seem to favor, you would want to minimize the number of dead people, so the correct N ratio depends on the psychological response to risk/reward of the average criminal. For a majority of would be criminals, even a 10% chance of being killed in retaliation is a strong disincentive, so you would get a strong crime reduction response for relatively a large N. As you continue to decrease N, you will encounter hardened criminals, willing to gamble with their life, and eventually those irrational types you mentioned that do not respond to any threat of punishment. But as you go to lower Ns, your own victim count increases, as you kill more and more innocent men in the hopes of dissuading killers from doing the same.
So there is a sweet spot, significantly higher than N=1 where the total number of victims is minimized. We can reason the same about the punishment itself, and find a spot (N, punishment) for each crime that maximizes the societal welfare.
Still n >> 1. An individual is able to exercise judgment to avoid becoming a victim of crime, and in fact most crime prevention is distributed in this manner. But if the government arbitrarily decides to make you its victim, it's basically impossible to avoid. Furthermore when the government is the assailant, there's little chance of post-hoc justice.
If you're going to say that crime victims can exercise judgement to avoid becoming victims, the exact same thing can be said for a defendant in criminal court. "If you didn't go out at night, if you didn't keep the wrong friends, if you stayed home with your family who can serve as your alibi, you wouldn't be charged with this crime." Saying that potential crime victims should limit how they live their lives, but potential defendants shouldn't have to, is a double standard.
IMO, one of the most valuable roles of the justice system is to be a deterrent. "If you commit a crime, you will be put in jail, so don't even think about it." If you've ever witnessed schoolyard bullying in action, that's exactly what every single day in adult life would also look like, if not for the justice system. By deterring would-be-criminals, it keeps innocent people safe, without even having to send the would-be-criminals to jail.
Except that it isn't a perfect deterrent. Crime is still a major factor in society. To give just one example, 20% of women in America experience sexual assault at some point in their lives. And then there's robbery, assault, manslaughter, homicide... Some crimes are committed by those who're mentally unstable, or in the heat of the moment. But the vast majority are committed by criminals who are fully aware of what they are doing. People who would never do it if they knew for sure they would go to jail, but think they have a good enough chance of getting away with it. They either think they won't get caught by the police, or even if they did get fingered, they can find some loophole or weakness in the prosecution's case that would enable them to beat the rap. And the likelihood of the latter really comes down to how high the burden of proof is. A guilty person is much more likely to get convicted in a legal system where "n = 5", as opposed to "n = 10."
Psychology studies show that punishments are most effective as deterrents when they are consistent, immediate and guaranteed. The greater the variance, the better the chances of someone getting away with it, the less powerful the deterrent effect will be. Which means you're going to have more victims of crime. More victims of assault, kidnappings, rape and murder.
Which is really what the trade off should be all about. "It's better that N innocent people fall victim to crime, than for 1 innocent person to go to jail." Now what would your answer for N be?