A few days ago, Virginia prosecutor Ken Lammers suggested that someone wanting to break into the criminal lawyering trade should try working both sides of the aisle:

Personally, my hope is that working both sides will lead a person to have more loyalty to the system than a side. That's not to say I don't expect people to play their part in the system to the fullest extent of their ability. The system doesn't work if they don't. Still, all this silliness about being at "war" with the other side tends to come from "True Believers" and True Believers tend to come from people who have never seen and don't understand the other side.

(Ken walks the walk: He used to be a criminal defense lawyer. Before that, he was in Army intelligence. By the time you read this, he might be a professional dog trainer.)

Houston Criminal Defense Lawyer Mark Bennett didn't like that idea:

the system doesn't work, period. Even with zealous advocates on both sides, innocent people -- that is, factually-innocent people -- get convicted of crimes and sent to prison. No system that sends a single innocent person to prison deserves our loyalty. No system that sends a guilty person to prison for a day longer than necessary deserves our loyalty.

I'm not sure loyalty is the right word for how a person behaves with respect to a system, but Mark is overstating his case, as Virginia prosecutor Tom McKenna points out:

But if one understands that the system itself impliedly allows for the potential of a certain number of innocent people being convicted (by not demanding a standard of "absolute proof" or "proof to a metaphysical certitude") then it can be understood that the system is no way broken simply because some very small number of mistaken convictions occur.

In sum, we do not, and have never had, a system that adopts the old saying of Blackstone, "better that ten guilty persons escape than that one innocent suffer" in the sense that we fashion our system to be absolutely infallible in assigning guilt. There is, in effect, a built-in error rate inherent in the process.

Quite right. No system is perfect. Mark's protest against a system that "sends a single innocent person to prison" is great rhetoric, but I'm pretty sure that if our justice system was somehow reformed to the point where it could be proven to falsely imprison only one person per year, Mark would no longer want to burn the M-- F-- down.

I'm not saying that imprisoning the innocent isn't an injustice---of course it is---but that perfection comes at a very high cost. Medicine is imperfect, and Doctors kill patients all the time while trying to save their lives, but medicine is still a good idea. We're better off killing a few people to save the rest of them than letting all of them die of natural causes.

Unlike medical patients, criminal defendants are not volunteers, so the tradeoff isn't the same. Nonetheless, the cost of never convicting the innocent is probably too high. It doesn't do a lot of good to free the last innocent man from prison if he's one of a thousand people killed that day by marauding gangs.

That last sentence is a great soundbyte, isn't it? As a writer, it would be cool to stop right there. I can't do that, though, because I think Mark Bennett is mostly right. He may be exaggerating about that single innocent person, but the justice system is nowhere near that good. We've got a long way to go before we have to start worrying about that last innocent man.

Start with the false conviction rate: Even if you believe our justice system protects the innocent with 99% accuracy, that means there are 23,000 innocent people in prison right now.

Then, as Mark points out, you have to consider whether people deserve the severity of the sentence they receive---for whatever meaning of deserve you believe is just. At its simplest, this is a matter of time. If you send a truly guilty man to prison for ten years when he really only deserves five, it's kind of like you imprisoned an innocent man those extra five years.

It gets more complicated than that, however, because guilty is a multi-valued concept. Similar acts can constitute different crimes, and even the same crime can come in different degrees. If we sentence a man to life in jail for first degree murder when he should be doing 15 years for manslaughter, we could call it a wrongful murder conviction or we could call it too severe of a sentence, but either way it's a failure of the system to reach the right result.

It's hard to get a handle on just how bad the problem is, but I think a report issued last year by the Pew Center on the States sheds some light on the subject:

Nationwide, the prison population grew by 25,000 last year, bringing it to almost 1.6 million, after three decades of growth that has seen the prison population nearly triple. Another 723,000 people are in local jails.

The number of American adults is about 230 million, meaning that one in every 99.1 adults is behind bars.

In other words, slightly more than one percent of the entire U.S. adult population is behind bars. This is an astonishing number. Here in the "land of the free" we imprison a larger share of our population than any other nation.

(It's even worse for minorities. One out of every fifteen adult male black Americans is locked up. In the 20-34 age group, that figure rises to more than 10%.)

It's been that way for a while, which is why about three years ago, I asked:

The United States imprisons a larger portion of its population than any other country. Is that because the people of the United States are a pack of criminals? Or is that because the government of the United States is a cruel tyranny?

In his post, prosecutor Tom McKenna pretty much gives his answer. He thinks even more Americans need to be imprisoned:

What is more disturbing is the approaching loss of public confidence that "The System" convicts and adequately incarcerates enough of the guilty

I've heard that before. We still have crime, the thinking goes, so we must still need to imprison more people. McKenna and others who take this position somehow don't see that their view conflicts with the size of our prison population.

It comes down to this: How is it that we (a) put more people in prison than any other nation and (b) still have such high crime rates?

The answer is obvious. There's only way both of those facts can be true. We are imprisoning the wrong people for the wrong crimes.

I've been blogging about this from the start. Literally. On my very first day, I blogged about how the feds were prosecuting a college student for selling her used underwear. Less than a year earlier, a mysterious terrorist had killed five people with envelopes full of Anthrax, but the Department of Justice was wasting time with envelopes full of soiled panties.

It's not just the silly stuff. We prosecute hundreds of thousands of people every year for crimes that don't even have victims, such as using the wrong recreational drugs or exchanging money for sex. We even prosecute people for exchanging money for money with our laws against gambling and money laundering.

It's gotten so bad that we now prosecute people for crimes that have fictional elements. You can be convicted of prostitution without selling sex or drug dealing without selling drugs. You can be convicted of money laundering---hiding the proceeds of a crime---without any proof of an underlying crime, and Martha Stewart was essentially convicted of covering up a crime that the FBI never proved happened.

If it's a failure of the justice system to convict people of crimes they didn't really commit, then surely it's also a failure of gigantic proportions to convict hundreds of thousands of people of crimes that aren't really crimes.

Update: One of Scott Greenfield's posts today is about an aspect of this problem:

America has a regulation for just about everything.  Often, the regulation has a sound reason for its existence, and is a well-intended effort to protect the public.  The problem is that regulatory violations sometimes result in fines and orders to change procedures, but other times result in criminal prosecutions resulting in extraordinarily harsh prison sentences for people who make a business mistake.  Neither malice, nor even gain, need necessarily be involved.  Some of these prosecutions will blow your mind.  I know that the defendants prosecuted can't fathom their reality.

I'd probably be more willing to listen to cops and prosecutors complain about how hard it is to fight crime if they fought, you know, real crime.

Update: Then there's the problem of all the idiotic laws cities are passing these days. Dallas, for example:

Don't smoke. Not even in bars. Because you might ruin the health of those bar-hoppers who are there to get a cardio workout. Take those stickers off your window. No dogs allowed. Put on your bike helmet. Put down that toy gun. You are under surveillance. Hang up that cell phone. Don't touch. Don't walk. Don't run. No horseplay. Tear down that dangerous playground equipment. Fireworks? High-dive boards? Are you kidding? It's the crazy minutiae of it all that gets you. You end up breaking the law without even knowing it.

...

Among the myriad problems with these kinds of paternalistic laws is that they are generally so unenforceable--except those that are cash cows. The slipperiness of the paternalistic laws creates a contempt for legitimate laws, and it burdens the system with paperwork that doesn't get resolved. Half a million class C misdemeanor citations were written in the 2006-2007 fiscal year for picayune things like panhandling, jaywalking, and the like; more than half of those are in warrant status. The city spends time and money fining and even incarcerating people for "crimes" that present a danger to the offender and no one else. Given how many violent crimes are committed every year in Dallas, enacting paternalistic laws raises the question of priorities.

Update: An earlier version of this post left out the word "adult" in the phrase "one percent of the entire U.S. adult population is behind bars."