The presumption of innocence

[isomin at gmu.edu]

Sandy brings up an interesting point. I see this is as an example of the unjustified seepage of legal norms into the broader culture, including situations where those norms are not needed to advance the purposes they serve in the legal system.

In criminal law, there is a presumption of innocence because we believe that a Type I error (convicting an innocent person) is usually worse than a Type II error (letting the guilty go free). We believe this in large part because conviction of the innocent deprives them of their life, liberty, or property unjustly. In the court of public opinion (where life and liberty are not at stake) it is far from clear whether a Type I error is worse than Type II or vice versa. Therefore, it makes good sense not to apply a presumption of innocence in public debate even when it should be applied in the underlying legal proceedings that were are debating. For example, it is perfectly consistent for me to claim that O.J. Simpson is guilty  of murder while simultaneously conceding that he should not be imprisoned, given that he was acquitted at his trial.

This point also sheds some light on Sandy's analogy to Padilla. In dealing with captured suspected terrorists, the argument that Type I errors are worse than Type II is far weaker than in dealing with most ordinary criminals. Releasing terrorists could lead to the deaths of thousands of innocent people, a risk that rarely if ever arises in ordinary criminal trials. Thus, it may make sense to afford captured suspected terrorists in wartime much less of a presumption of innocence than is accorded to ordinary criminal suspects. Alternatively, we could retain the presumption of innocence, but weaken other procedural protections enjoyed by terrorism defendants.
This is not to say that the Bush Administration is right in all of its claims on these issues. I think sometimes they have gone too far in asserting virtually unlimited executive power over captured enemy combatants. But I do think it makes good sense to give such people significantly fewer procedural rights (including possibly a lesser presumption of innocence) than those extended to ordinary criminal defendants.

Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
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