About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

85 Chi.-Kent L. Rev. [i] (2010)

handle is hein.journals/chknt85 and id is 1 raw text is: CHICAGO-KENT LAW REVIEW VOLUME 85 2010 NUMBER 1 CONTENTS SYMPOSIUM: SYMPOSIUM ON CRIMINAL PROCEDURE SYMPOSIUM EDITOR RUSSELL L. WEAVER INNOCENCE, EVIDENCE, AND THE COURTS Morgan Cloud 3 I. INNOCENCE DEADLY DILEMMAS II: BAIL AND CRIME Larry Laudan 23 and Ronald J. Allen This is another in a series of papers examining the interaction between the implications of the deadly dilemma of governing that virtually all governmental action involves unavoidable conflict between equally laudatory goals and the con- ventional way of thinking about social errors. Typically the pursuit of any particu- lar goal has as its consequence precisely the kind of harm that is desired to be avoided. For example, serious felons are sent to prison in part to protect innocent parties from their future predations, but those same felons often prey upon fellow prisoners, including murder. Moreover, felonies committed in prison only begin the catalogue of wrongful consequences to innocent individuals flowing from incarceration. If it is sufficient to end a social practice because it causes innocents to die, then we are obliged to eliminate prisons-and hospitals for that matter. The point cuts even deeper. Virtually every governmental decision affects who will live and die. Whether roads are built, where, and to what standard of safety do this. Decisions on welfare programs do, as does the allocation of medi- cal research funds or the choice to fund research instead of primary education, or vice-versa, or whatever. To the extent such matters are considered in the litera- ture at all, the explicit treatment of errors by both the legal system and legal schol- ars has been curious both analytically and normatively. The simplest example of this is the virtually exclusive focus of both on false positives (false findings of lia- bility, civil or criminal) and false negatives (false findings of no liability). This neglects two fundamental issues: first that there are four possible findings at trial, the two mistakes and the two possible correct verdicts; second and even more importantly, that sensible social regulation must be concerned not just with out- comes at trial and the resultant effect on litigation behavior but also with the ef- fect of trial decisions on primary behavior. In sum, we suggest that sensible social policy must involve an analytically sound approach to decisions involving such deadly dilemmas. As we have demonstrated in previous work, the failure to do so leads to both analytically and morally perverse results in some areas. We demon- strate that same failure here in the context of pre-trial release decisions. We also suggest a modification of current practice that might ameliorate costs without alto- gether eliminating bail.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most