JoachimSchipper comments on Hearsay, Double Hearsay, and Bayesian Updates - Less Wrong
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That's an excellent question. The answer depends on exactly what you mean by "better than chance." If you mean "more than half of those convicted of a crime are guilty of that crime," then I'd say yes, there is excellent reason to think that they are. Prosecutors usually have access to several times more reports of crime than they can afford to go out and prosecute. Prosecutors are often explicitly or implicitly evaluated on their win ratio -- they have strong incentives to pick the 'easy' cases where there is abundant evidence that the suspect is guilty. Most defense lawyers will cheerfully concede that the vast majority of their clients are guilty -- either the clients admit as much to their lawyers, or the clients insist on implausible stories that don't pass muster, which the lawyers have to disguise in order to get their clients to go free. Although as a matter of law and rhetoric people are presumed innocent until proven guilty, as a matter of cold statistics, someone who has been lawfully indicted in America is probably more likely to be guilty than innocent. In fact, there are probably so many guilty suspects in Court that the legal system does strictly worse than what social scientists call a "naive predictor" -- i.e., just assuming that everyone is guilty. Of course, that wouldn't be a sustainable policy -- prosecutors choose easy cases because they know that they'll be required to win those cases in a relatively challenging environment. If the rule were that everyone is guilty, prosecutors would start choosing cases based on other criteria, and the percentage of indicted suspects who were actually guilty would go down.
Suppose you survey defense attorneys, and conclude that, say, roughly 80% of indicted suspects are guilty. Could you somehow measure whether the legal system does better than a "mixed strategy predictor" that guessed that a suspect was guilty with probability 0.8 and guessed that a suspect was innocent with probability 0.2? The mixed-strategy predictor would get an accurate result in (0.8) ^ 2 + (0.2) ^ 2 = 68% of the time. To assess whether the legal system is better than a mixed-strategy predictor, you would need to have a way of validating at least a sample of actual cases. I really have no idea how you would start to do that. It's not clear that self-reported guilt or defense-attorney-assessed guilt will correlate strongly enough with actual guilt that we can figure out which individual cases the legal system gets right and which ones it gets wrong. But if you can't measure accuracy in individual cases, how do you figure out the system's overall accuracy rate? It's not clear that looking at appellate results or DNA exonerations, etc. would help either. A reversal on appeal is no guarantee of innocence, because a sentence can be reversed (a) if the evidence is still strong but not strong enough to remove all reasonable doubt as well as (b) when the prosecution or police have used inappropriate but reliable tactics (such as using high-tech cameras to take pictures of the inside of your home without a warrant).
Finally, there is "better than chance" in the sense of specific forensic techniques being verifiably better than, say, a Ouija board. There are several pretty good techniques, such as document analysis, DNA analysis, electronic tracing, and perhaps even paired-question polygraph testing. Whether or not the system interprets the evidence correctly, a typical trial at least contains sufficient evidence for a rational evaluator to beat chance.
Careful, there: the economic damage of not locking up a thief is much lower than the economic damage of incorrectly locking up a non-thief. "It's better that X guilty people go free than that one innocent person goes to prison" is a good principle.
(Note that X is likely to have different values for weed users, thieves and serial killers.)
Could you expand on that?
I'll have a go.
A thief at large but constrained by trying not to get caught doesn't do as much net economic damage as destroying the economic, family and social life of an otherwise productive member of society.
For example, it would be almost impossible for a single shoplifter or casual stealer of office supplies to do anything like the economic damage of even removing themselves from the economy and putting them in prison. The only reason we still do it is to discourage behaviour that would seriously hurt the economy if it became the norm.
If you start locking people up with careless disregard for whether or not they are guilty, you get all the economic cost of the prison system but lose the clarity of the signal. The message becomes "hey, you're probably going to prison at some point anyway. Might as well grab what you can while you are still free to enjoy it".
I wouldn't quite expect that, but certainly I agree that if there's no expectation that punishment correlates better with committing a crime than with refraining from doing so, then punishment loses its deterrent function, which I gather is your real point here.
Part of my point.
In addition to that, perception of unfairness in the justice system devalues the social contract between government and individuals. It places the individual in a competing rather than cooperating relationship with social institutions (such as law enforcement), so it's not a mere lack of deterrence, it's active encouragement to defect for individual gain at the expense of "the man".
If you doubt it, ask anyone who lives in a neighbourhood where the cops have a record of incompetence or abuse of authority.
I've heard (anecdotally, not with good evidence) that this is precisely the attitude that many poor urban young black men already have (actually with ‘go to prison’ changed to ‘go to prison or get killed’). Thus one has every reason to join a gang for the immediate services that it provides, future be damned.
Worse epistemically, not instrumentally.