A Moral/Ethical
Question: Let The Guilty Escape?
Shrikant G.
Talageri
Recently, I wrote an article “Terrorists
and Terrorism and the Rights and Wrongs of the Matter”, in which I
supported a kind of “vigilantism” shown in an American serial “Dexter”
that I happen to be watching at the moment, where the protagonist of the serial
is basically a psychopathic serial killer himself but he goes around fulfilling
his psychopathic urges and obsessions by targeting and killing only (other) psychopathic
serial killers and criminals who manage to escape the clutches of the extremely
faulty American Justice System.
One reader in a long and
sensitive comment pointed out that treating violence as a solution to crime
could be dangerous since “as
nobody is perfect, those who resort to such vigilantism also can evolve to
become the monsters they set out to punish. Yet they might continue to believe
they are doing a great service as they have convinced themselves of it from the
start.”
I replied: “I agree with you. But isn't this exactly what
I am also saying in the above article: "And indeed, human beings being
human beings with their multiple faults, the individuals and organizations
who/which start out on such activities generally tend to acquire criminal
tendencies themselves in the course of time and become at least as big a
problem as the socio-criminal tendencies and problems in society that they set
out (or claimed to set out) to counter in the first place: perhaps Naxalites
who claimed to have set out to oppose socio-economic exploitation in rural and
tribal parts of India are the most telling examples of this. So it is not
practical or realistic to really support violent vigilantism as a real solution
to problems." I have given both the sides, you are only emphasizing one.”
To which, the reader readily agreed.
I must add here that in
supporting “vigilantism” of this kind, apart from noting the fact that
such activities can go rotten, I must also note that to indulge in such
violent activities you require to have some kind of similar strong or violent (which
may extend in extreme cases to dangerous) element in your own personality as
well. Thus I myself would never have been able to become a soldier or policeman
or violent vigilante myself (any more than I could have
become a street-fighter or a violent criminal of any kind) because such
activity is simply not part of my personality. Crime-fighters do
necessarily require to have, within themselves, some kind of similar (to
criminals) violent traits, or readiness to indulge in violence in particular
circumstances, in order to fight criminals.
But this exchange again brought
to my mind this moral/ethical question of innocent vs. guilty
people.
[I also thought I vaguely remembered a quotation from the Mahabharata
which referred to such a question. But, when I recalled the full context, and
searched out the quotation, it turned out to refer to a different, if equally debatable,
kind of moral/ethical question which is not strictly relevant here since it
does not directly pertain to any question of guilt or innocence.
The quotation is from the Vidura nīti section of the Udyoga
Parva (Book 5). in which Vidura advices Dhṛtarāṣṭra
to sacrifice his son Duryodhana for the greater good of the clan and
community:
“Tyajed ekam kulasyārthe grāmasyārthe kulaṃ tyajet | Grāmaṃ
janapadasyārthe ātmārthe pṛthivīṃ tyajet ||”. That is: “One individual should be sacrificed for the sake of the
family. An entire family should be sacrificed for the sake of a village. A
village should be sacrificed for the sake of the country or state (janapada). For
the sake of the Self (Atman or
self-realization), the whole world/earth should be sacrificed.”]
Searching for the quotation
relevant to my point, I found the following on Wikipedia:
https://en.wikipedia.org/wiki/Blackstone%27s_ratio
“In criminal law, Blackstone's ratio (more
recently referred to occasionally as Blackstone's formulation) is the idea
that:
It is better that ten guilty persons
escape than that one innocent suffer.[1]
This was written by the English
jurist William
Blackstone in
his seminal work Commentaries on the Laws of England, published in the 1760s.
The idea subsequently became a staple of
legal thinking in jurisdictions with legal systems derived from English
criminal law and continues to be a topic of debate. There is also a long
pre-history of similar sentiments going back centuries in a variety of legal
traditions…..
Defending British soldiers charged with murder for their role
in the Boston
Massacre, John Adams also expanded upon the rationale
behind Blackstone's Ratio when he stated:
We find, in the rules laid down by the
greatest English Judges, who have been the brightest of mankind; We are to look
upon it as more beneficial, that many guilty persons should escape unpunished,
than one innocent person should suffer. The reason is, because it’s of more
importance to community, that innocence should be protected, than it is, that
guilt should be punished; for guilt and crimes are so frequent in the world,
that all of them cannot be punished; and many times they happen in such a
manner, that it is not of much consequence to the public, whether they are
punished or not. But when innocence itself, is brought to the bar and
condemned, especially to die, the subject will exclaim, it is immaterial to me,
whether I behave well or ill; for virtue itself, is no security. And if such a
sentiment as this, should take place in the mind of the subject, there would be
an end to all security what so ever.[”
The immediate
precursors of Blackstone's ratio in English law were articulations by Hale
(about 100 years earlier) and John Fortescue (about 300 years before that), both
influential jurists in their time. Hale wrote: "for it is better five
guilty persons should escape unpunished, than one innocent person should
die." Fortescue's De Laudibus Legum Angliae (c. 1470)
states that "one would much rather that twenty guilty persons should
escape the punishment of death, than that one innocent person should be condemned
and suffer capitally."
Some 300 years before
Fortescue, the Jewish legal theorist Maimonides wrote that
"the Exalted One has shut this door" against the use of presumptive
evidence, for "it is better and more satisfactory to acquit a thousand
guilty persons than to put a single innocent one to death."
Even Voltaire in 1748 in the
work of Zadig used a
similar saying, although in French his thought is stated differently than in
the English translation: "It is from him that the nations hold this great
principle, that it is better to risk saving a guilty man than to condemn an
innocent man.”
There is also an
opposite viewpoint:
“Viewpoints in politics
Authoritarian personalities tend to take the
opposite view. According to the Communist defector, Jung Chang, similar reasoning was deployed during
the uprisings
in Jiangxi, China,
in the 1930s: "Better to kill a hundred innocent people than let one truly
guilty person go free";[25] and during uprisings in Vietnam in
the 1950s: "Better to kill ten innocent people than let a guilty person
escape."[26] Similarly in Cambodia, Pol Pot's
Khmer Rouge adopted a similar policy: "better arrest an innocent person
than leave a guilty one free."[27] Wolfgang
Schäuble referenced
this principle while saying that it is not applicable to the context of
preventing terrorist attacks.[28] Former American Vice President Dick Cheney said that his support of American
use of "enhanced interrogation techniques" against suspected terrorists was
unchanged by the fact that 25% of CIA detainees subject to that treatment were
later proven to be innocent, including one who died of hypothermia in CIA custody.
"I'm more concerned with bad guys who got out and released than I am with
a few that in fact were innocent." Asked whether the 25% margin was too
high, Cheney responded, "I have no problem as long as we achieve our
objective. ... I'd do it again in a minute."”
The
first question that arises from all this is: is it absolutely essential that “letting
guilty persons escape” and “letting innocent persons suffer” must
necessarily be juxtaposed and linked together, and made negatively dependent on
each other? Can’t it simply be “let guilty persons suffer and let innocent
persons escape” instead of “it is better to let guilty persons escape
than to let innocent persons suffer” (the so-called humanitarian view) or “it
is better to let innocent persons suffer than to let guilty persons escape”
(the authoritarian view)?
And
is it really a fact that the justice systems of the so-called democratic modern
western world generally follow any of these three principles in their
sincere “legal” application of “laws” in making legal judgments on the
innocence and guilt of accused criminals who appear before the judges in their
courts (even when − as they very often do − corruption, bias and ulterior
motives do not rule the rulings, and the rulings are strictly as per “legal”
rules and procedures)?
In
my article “Hindutva or Hindu Nationalism” I referred to an American TV serial
“The Practice” which (like almost every other TV serial about court
cases in the west, which would seem to suggest that this is the norm or
generally observable case in the west) seems to follow the principle (unless it
is exposing the distortions in the principle) “it is better to see that all the rules and
regulations of the Law (including and especially all its logical loopholes) are strictly followed than to allow questions
of actual guilt or innocence to decide the judgments and rulings, or to decide
whether to let innocent persons suffer or to let guilty persons escape”. No
wonder Law is the biggest, most powerful and most lucrative business in
the West.
In
that article, I wrote: “Let
us examine, as briefly as possible, the relevance of the above basic
principles, or the different ways in which the present set-up and trends are
moving in the direction opposite to these basic principles:
1) The first basic principle,
enumerated above, is the primacy of the spirit of Justice over the letter of
the Law. This is important because Law has not always been synonymous with
Justice in this world. A blind belief in the sanctity of the Law, and in the
power of Authority to enforce the Law, has always been fostered by different
entities (eg. by different kings, governments, civilisations, religions,
priesthoods, etc.) to establish, and maintain, their stranglehold over their
followers or subjects. Every Authority, the Taliban leadership in Afghanistan
as much as the democratic government in the USA, believes, or claims, that its
system of Law is the best in the world. But the truth is that most laws are
formulated, established and enforced by vested interests, and, throughout
history, laws have, more often than not, been used more to perpetrate injustice
and exploitation than to establish Truth and Justice. Even the seemingly most
impartial and objective laws are susceptible to willful technical
misinterpretations. The western or “modern” system of Justice, as much as any
other, is notorious for its great capacity for manipulation and injustice.
[There is an American serial on the
Star World channel, “The Practice”, which depicts the gross injustices that
take place in the American system, where heinous crimes - murder, serial
killings, rape, cannibalism, to name a few - go unpunished because the judges,
lawyers and juries conclude that even open-and-shut cases do not merit
convictions if there are technical - sometimes incredibly, trivially technical
- grounds for acquittal; while even openly innocent people are convicted on
equally technical grounds. The serial, incidentally, defends and justifies such
a system]. Similarly, in India, rules and laws (and, especially in modern
contexts, “discipline”) have always been, at the very least, instruments for
the victimization of sincere people, for the benefit of vested interests, and
for the legitimization of unjust or wasteful systems and activities.
There is no doubt that a lawless
society cannot be an ideal: laws are absolutely necessary for the smooth
running of society; but only when they are formulated, and administered,
on the principles of Truth and Justice, and guided by logic, common sense, and
principles of common humanitarianism.”
In
so many cases, the purely technical nature of the points which let a guilty
criminal go free, or which let an innocent accused get convicted, are so clearly
open and obvious that few can honestly feign ignorance or unawareness of the
fact that Justice is being grossly violated. The whole
thing is defended and excused on the ground that “this is the Law, and it
must be respected and enforced”.
In
many cases, even this fig leaf of doubt is missing, and this is where the
apologists have to fall back on “humanitarianism” (at least in the case
of letting the guilty go free). And this “humanitarianism” is often even
more ghoulishly criminal, inhuman and psychopathic than the actions of
either the criminals themselves or of any violent vigilantes.
The example of the Indian Courts not only letting the minor (who not only raped
“Nirbhaya” in the notorious Delhi gang rape incident, but ghoulishly inserted a
rod into her body and pulled out her intestines) go free with a nominal sentence
of a few years in a “reform facility”, but actually (out of the taxpayers’
money and with the assistance of tax-financed administrations) let him anonymously
loose (with a new secret identity) in a totally undisclosed part of South India,
shows how the “Laws” and “legal systems” can even exceed
the ghoulishness and perverted sadism displayed by the actual criminals
themselves. When we see, in films and serials and news reports, the person
raped by the powerful local politician’s son in a remote village being punished
by the sarpanch or panchayat for trying to “blacken the name of a respected
member of society”, how is it different from how the “Laws” and “legal
systems” in almost every part of the world treat criminals and their
victims most of the time? Is blind belief in “Laws” and “legal systems” really something to recommend with fundamentalist fervor?
A
second point that all these advocates of pious “moral-ethical” maxims like “It is better that ten guilty
persons escape than that one innocent suffer” turn
a blind eye to is the fact that each of those ten “guilty persons”,
who “escape” punishment, and are let loose on society, can then again
kill or victimize ten other innocent people? Apparently those
hundred innocent people (if one must compulsorily
juxtapose guilty persons escaping as equivalent to, or even “being better
than”, innocent persons not suffering) have less value than that one
innocent person in the eyes of these moralists. As I said, why
not just accept the principle “let guilty persons suffer and let innocent
persons escape” and see that it is followed?
These
are just my personal thoughts on this moral-ethical question.