The Costs and Benefits of Presuming Guilt

Megan McArdle takes on Ezra Klein’s call for presuming that male college students who are accused of rape are guilty unless conclusively proven otherwise:

Ezra Klein wrote, “men need to feel a cold spike of fear when they begin a sexual encounter.” This is not the solution, or even a solution. This is, in fact, a problem.

In the 1970s and 1980s, a lot of people were walking around this country with a constant background terror of being assaulted, and a lot of people decided that the way to solve that problem was to make a lot of men, mostly poor and black or Hispanic, feel in constant terror of the justice system, by expanding the laws on the books so that prosecutors and judges had a lot more power to put people in jail for long periods. The advocates thought that this form of terror was better, and more manageable, but in fact, it is worse, because it weakens the vital principles of equal justice and leaves the victims of the system with no recourse at all.

Consider three policy proposals (1) Klein’s suggestion regarding sexual assault prosecutions at college, (2) Aggressive stop and frisk policing of young minority males in New York City, and, (3) The treatment of terrorism suspects in the immediate aftermath of the 9/11 attacks. At bottom, all shift to a legal model in which the accused is presumed guilty rather than innocent. All were generated in response to horrible things (rape, violent street crime and terrorism, respectively) which the proposers believe require a fundamental rewrite of cherished rules. As Klein wrote about rape, and Dick Cheney might have said about torturing suspected terrorists, “Ugly problems don’t always have pretty solutions.”

Proponents of presuming guilt can note accurately that because it leads to widespread punishment of a population, guilt presumption will generate a climate of fear that deters some bad behavior. In New York City for example, stop and frisk policing made men afraid to carry firearms, so they largely stopped doing it. This in turn reduced the number of people who were shot, which is clearly a good thing. Although we don’t have the evidence to prove it, it seems plausible that at least some people who would have otherwise joined terrorist cells did not do so because they feared being savagely punished. It also seems plausible that if colleges begin convicting legions of men for rape even in ambiguous situations, some men would be deterred from sexual assault because they believed that they could probably not get away with it.

Those who favor guilt presumption might also argue that in crisis situations, a clear and effective alternative to their approach is not available. When there is rioting, fires and looting in a city, we routinely move to a guilt presumption model: Curfews apply to the innocent and the guilty, rubber bullets are fired both on looters and those who are standing nearby cheering but may ultimately not join in the looting themselves. If we must continue to presume innocence in these situations, how do we stop a rioting city from burning to the ground?

The costs to presuming guilt are considerable however. There is no getting around the reality that presuming guilt means punishing many more innocent people than when you presume innocence. Criminologist David Kennedy, who has spent his career working in low-income minority communities, tells me that when young minority males see police officers, they often automatically “assume the position” even without being asked. They expect to be treated as criminals and humiliated. This makes them hate the police and see the law as illegitimate. Similarly, the War on Terror’s presumption that every Arab with a political gripe was probably a terrorist did lasting damage to U.S. legitimacy around the world.

Also, as Megan points out, the costs of guilt presumption are not equally shared. If you own a flat in Brooklyn, see the crime rate dropping and again feel safe when you go shopping, you may only be dimly aware that these benefits are produced at the cost of innocent young minority males being rousted by police. That’s why it’s always fair to ask those who want a presumption of guilt if they are willing to endure the costs themselves, e.g., be convicted wrongly of rape in an ambiguous situation, be waterboarded because they happen to have a relative who is secretly plotting a terrorist attack. Some of those who wish guilt to be presumed would have the integrity to agree to take on such costs, but I believe most would balk at the idea of living under the same rules they wish to set for other people.

[Cross-posted at The Reality-Based Community]

Keith Humphreys

Keith Humphreys is a professor of psychiatry at Stanford University. He served as a senior policy advisor at the White House Office of National Drug Control Policy from 2009 to 2010.