A Moral/Ethical Question: Let The Guilty Escape?

 

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.