But that's not balancing it. It's just convicting the innocent automatically.

>We don’t like pre-crime convictions because we believe risks 1 and 3 outweigh any gains in 2.

There is no such thing as a pre-crime conviction unless a crime occurs.

>But it’s at least debatable.

It's debatable in the same way any nonsense is debatable - you can put the words together in a sentence - but in the colloquial sense of "debatable" it really isn't.

Except pretrial detention, which is where bail comes in, is done prior to adjudication (plea bargain, trial, etc.), not after.

As such, the folks we're talking about haven't been convicted of anything. And if, as is supposed to be the case, that one is innocent until proven guilty, you're advocating for innocent people to be punished.

Is that actually your stance on this, or were you not understanding the situation?

The bulk of nearly any judge's case load is criminal appeals from run of the mill criminals. They might be pro se, they might have a public defender, they might have a cheap local lawyer, but they're not deep pocketed by any means. Indeed, clerks see a skewed picture of things, but one that is if anything skewed towards seeing fewer actually guilty people, not more, for the obvious reason that actually innocent people are more likely to file an appeal than actually guilty ones.

> I do not know where you got the idea that our criminal justice system is serving its purpose. It may be great at putting criminals in prison, but it is meant to protect innocent.

The purpose of the criminal justice system is to protect the law-abiding public by putting criminals in prison. That is its sole reason for existing. An important constraint in doing so is protecting the innocent, but that's not its purpose. If it were, then you could design the perfect justice system simply by never putting any people in prison. But the world has bad people, lots of them, and that's not a tenable option.

You design a justice system the same way you design any system. You pick a false-positive rate you can live with, then design the rest of the system to maximize throughput while still hitting that false-positive target. It's the only sane way to design something that works as opposed to a non-working platonic ideal.

The presumption of innocence is a legal standard to partially offset the immense might of the state. The prosecutors should need to do a very good job establishing that you actually did something before they can put you in a cage.

When it's people talking about statistical measures that don't directly disproportionately impact any given person, no, it doesn't.

Agreed, but that would either bankrupt the government or make defense attorney a much less lucrative career and, therefore, greatly decrease the number of available defense attorneys.

> It's almost as though you're saying we don't even need a trial here because the facts are so obviously established. I don't believe it's yet been established in a court of law that any crime was committed, much less that this person committed it.

Not at all what I meant. On the contrary, I meant that cases when we the outside viewers realistically know that the defendant isn't clean are probably not the best cases for highlighting the need for a competent defense.

You missed a possibility. Maybe they put in sufficient effort during investigation and when deciding whether to prosecute to weed out all the innocent people then and build good cases against the actual bad guys.

Very high conviction rights are symptoms of both puppet criminal justice systems that just convict whoever the state wants convicted and of criminal justice systems that only convict actual bad guys and do a good job of getting wrongly or mistakenly accused innocent people out of the system quickly. You need to look deeper to figure out which kind you are dealing with.

It is when a criminal justice system has a low conviction rate that you can be sure something is wrong.

Occasionally? Given the 4% rate of false conviction for death penalty defendents (http://www.pnas.org/content/111/20/7230.abstract) and the fact that 97% percent of criminal cases dealt with in the U.S. don't even go to trial, it's far more than occasionally. Often. Quite often.

OP points out that we have criminal courts for a reason - he's not comparing this scenario with an actual conviction after a trial with presumed innocence. In your analogy, it would have to be common for people to be fired from their jobs (and blackballed from entire industries) on the strength of a murder accusation that hasn't even been presented to the police, much less been through a trial.

Once a case is under trial, that’s their job, isn’t it, just as it’s the job of the defense to get an acquittal, even if they think or even know you did it?

I think the problem is pre trial, with trials getting started even though there’s no good evidence.

The US system of criminal justice is based on a strong presumption of innocence in court (and the civil system has a much weaker presumption), but those presumption are not intended to apply thr same way to the people who investigate crimes or to institutions who perform non-criminal, including investigatory, functions.

If you apply a strong presumption of innocence to the investigative function, you never investigate and never find evidence.

You're arguing that "presumption of guilt" is somehow contextually relative. It's not. If 99% of "trials" result in a conviction, there's an unequivocal presumption of guilt.

It's not a matter of protecting the rights of guilty people or not, but determining how much to protect them. Every procedural protection has a cost. If a procedural protection might be invoked by a person who has a 10% chance of being innocent, then maybe it's worth the cost. If it's more likely to be invoked by a person who has a 1% chance of being innocent, then maybe it's not. Looking only at media reports gives you a distorted picture of what those probabilities are.

> The trope here is the suggestion that criminals are getting off on technicalities.

I didn't say they were getting off on technicalities. I said they were trying to get off on technicalities.

"Better to let a 100 guilty men go free than 1 innocent man go to jail" makes for good rhetoric, but even such flowery language implies a point at which its better to let 1 innocent man go to jail than let a certain number of guilty men go free.

Short answer: Yes, both today and historically, especially when we meted out more brutal punishments. Literature on the history of jury nullification invariably points this out.

However, juror leniency has waned as jury pools have become increasingly composed of people who don't live in the same neighborhoods or socio-economic conditions as the defendants and therefore lack a more realistic perspective of the risks and benefits of leniency rather than being driven by fear. See, generally, The Collapse of American Criminal Justice by William Stuntz.

It's because that would break the system. There are over two million inmates in the United States. There is no known or obvious way to provide a reasonable defense for that many defendants in any cost effective manner.

A single good lawyer gets paid six figures. A criminal trial lasts several years through all the appeals. There are millions of accused. Do the math. It's just not happening.

The only way to fix it is to drastically reduce the number of accused so that each can be allocated more resources. So either we need to develop some magic to drastically reduce the number of crimes people commit, or we need to prosecute drastically fewer criminals, or we need to drastically reduce the number of things common people can be prosecuted for. Make your choice.

No, since criminal conviction has a higher threshold

To the contrary, I think it's incredibly unfair. But probably for different reasons than you do. For example, thousands of people every year are sentenced to an average of over six years in prison for possessing a firearm as a felon. It's "fair" in the sense that the error rate for those convictions is almost certainly negligible, because proof only requires showing possession and a fact that's a matter of public record. But in my opinion the crime and the sentence are unfair: we shouldn't take away the rights of people who have served their time, and six years is a sentence more appropriate for murder than possession of anything.

I think the under-funding of public defenders is a travesty. But most public defenders will admit that most of their clients are guilty, and they spend most of their time ensuring their clients plead to the right charges and get a fair shake at sentencing. It's "fair" in the sense that the system mostly convicts the right people (except at the margins, which is why public defenders should get more funding) but it's "unfair" in the sense that sentences are too long and many of these crimes shouldn't be crimes.

> One of my worst fears is being accused of some kind of crime, like cybercrime or anything else.

You should be afraid! Take, for example, 18 U.S.C. 1001, which makes almost any sort of false statement vaguely related to the federal government a felony. It's "fair" in the sense that there is almost never any doubt that the accused made the false statement in question (either in a recorded interview with an FBI agent, or in in writing in some official paperwork). But it's "unfair" in that it's often used to trap (or, more often, threaten) people who only did something marginally wrong. E.g. lying to a federal agent to conceal a workplace affair.

> Yet on the flipside, it seems to work, and we seem to live in a pretty decent and free society. I'm not sure how much or little we should credit the courts for that.

That's a really fundamental question. I think the way to look at it is to look at what happens in places without enforcement of certain kinds of conduct. E.g. sex crimes in rural India or Pakistan. Why do victims plead for enforcement of the laws on the books in such situations? Partly retribution. Probably not really deterrence--even with enforcement, the odds of getting caught are so low that there can't be much of a real deterrent effect. The biggest value of punishing crimes is, in my opinion, creating social norms. The overwhelming majority of people aren't "good" or "bad," but they will readily follow social norms that are visibly enforced. The primary benefit of putting people in prison for robbery thus is showing everyone that it's conduct that is so unacceptable that we put people in prison for it.

I think the point (which bears repeating) is that suspects are not criminals until proven so in a court, and it's important to be careful in our language, especially in our modern times where the court of public opinion operates swiftly and without due process.

I feel like judicial discretion in sentencing is pretty well understood, but I guess it could seem strange if you haven't spent much time reading about or experiencing the legal system.

What? Why?

Public defender might help the innocent stay free. But if you actually did the crime and were caught you're probably still going to jail barring some impropriety being involved.