I spend a lot of time trying to figure out certain things. Two that I seem to spend an immense amount of time on lately are these:

1. Is the world really becoming a more insane, or at least idiotic, place?
2. If so, why?

I could add a third: If not, why does it seem so?

But I think the answers to the first two questions make the third question unnecessary.

The world is becoming more insane, or idiotic — or, actually, both. I don’t have to watch Glenn Beck to know that.

On the one hand, we’ve got Crazy Joe Arpaio rolling around town in a tank with Steven Seagull crushing chickens. On the other, as I wrote the other day, you’ve got California “justices” who say that since they don’t know how to define what is perhaps one of the most important — if not the most important — phrases in American jurisprudence, no one should try to define it.

The truth of the matter, though, as I wrote in the comments responding to the attorney who says he agrees that the phrase is “undefinable,” is that it’s just a problem of political will. ^[1]I don’t think he actually believes it is undefinable. Maybe he does. I just don’t think he does. Maybe he’ll tell me I’m wrong and that he really, honestly, and insanely believes that he does. But based on some private email exchanges, I think our disagreement was more a product of talking past one another.

Because, you see, the world has changed. We embrace the idiotic. It has become insane.

Most judges long ago lost track of the idea that one of the things that were important to our Founders — and to the continued right to claim to be the freest country on Earth — was the belief that it was “more congenial with the humane principles of our criminal law, that a guilty man should escape, than to convict him upon evidence heretofore considered as insufficient.” ^[2]U.S. v. Wood, 39 U.S. 430, 446, 14 Pet. 430, 10 L.Ed. 527 (1840). Hell, even as far back as the Roman Emperor Trajan, it was believed that it was better to let the crime of a guilty person go unpunished than to condemn the innocent. Coffin v. U.S., 156 U.S. 432, 454, 15 S.Ct. 394, 39 L.Ed. 481 (1895). As late as the early 1800s, it was thought “better that ninety-nine … offenders should escape, than that one innocent man should be condemned. Schlup v. Delo, 513 U.S. 298, 325, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In Schlup, the Supreme Court remands on the arguments of Justices who have since retired; the dissenters from that case now control the Court and the sentiment no longer holds. If the case were heard today, I doubt it would have resulted in remand. But that’s exactly what proves my “political will” argument concerning the meaning of “beyond a reasonable doubt.”

We once believed that “the object of criminal proceedings is to convict the guilty, as well as to shield the innocent.” ^[3]Evans v. U.S., 153 U.S. 584, 590, 14 S.Ct. 934, 38 L.Ed. 830 (1894), emphasis added. In other words, the conviction of guilty persons did not have more weight than the shielding of innocent people from too-easily-obtained convictions.

As recently — or as long ago, however you want to view it — as 1972, when the death penalty was (briefly) abolished, no small part of the reason was a fear expressed by numerous Justices that

We have no way of judging how many innocent persons have been executed but we can be certain that there were some. Whether there were many is an open question made difficult by the loss of those who were most knowledgeable about the crime for which they were convicted. Surely there will be more as long as capital punishment remains part of our penal law. ^[4]Furman v. Georgia, 408 U.S. 238, 367, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

And so, in 1972, the United States joined other modern industrial nations in abolishing the death penalty.

For awhile.

But then the tide in the United States began to turn — or the pendulum which swings between sanity and insanity swung back — or maybe people just became stupider and judges, prosecutors, and criminal defense attorneys who suffered through a deficient educational system with them forgot the precepts of the Law, threw up their hands, and said, “We don’t understand this foundational principle of our justice system. It’s undefinable.”

Eventually, the death penalty was reinstated. The Supreme Court, which had previously stated that we know innocent people have been put to death and we may have put many innocents to death, is now nevertheless satisfied that the idea that any “constitutional error has caused the conviction of an innocent person is extremely rare.” ^[5]Schlup v. Delo, supra, 513 U.S. at 299.

As if that would satisfy the innocents who died, however rare, or not, they may be.

And so, as I said, the political currents have turned.

But the idea that the concept that the words “beyond a reasonable doubt” stood for is “undefinable” is frankly absurd. We have little problem defining concepts which were expressed in ancient and even “dead” languages. How can defining something in our own language and of not-incredibly-ancient origin be impossible for us?

There is no question that the phrase “beyond a reasonable doubt” was intended to have a real meaning. There is also no question that America’s judicial system was built on the idea that the standard should be a very, very high one. So high that convictions would be quite difficult for the government to obtain.

And this view is grounded in antiquity. One article on the incorporation of the concept into the law of India — an article which contains a high level of plagiarizing from American court opinions — provides a litany of examples: ^[6]I’m not going to try to put “[sic]” or correct the English errors in what follows.

The oldest bearing that the concept can be perceived in the old saying … ‘ it is better that a Guilty Person should be Absolved, than that he should without sufficient ground of Conviction be condemned.’

…

Then again it was laid, in the ancient Greek jurisprudence that … ‘better 100 guilty men are at liberty than one innocent man in prison.

…

In 1471, an English judge, John Fortescue suggested that … Indeed I would rather wish twenty evildoers to escape death through pity, than one man be unjustly condemned.

Then, Blackstone, in his Commentaries in 1765 wrote, “the law holds that it is better that ten guilty persons escape than that one innocent suffer”. In the seventeenth century, Matthew Hale, a famous English jurist, in support of his argument for the presumption of innocence cites a Latin maxim … It is better five guilty persons should escape unpunished, than one innocent person should die. ^[7]Jain, Tarun, ‘Let Hundred Guilty Be Acquitted But One Innocent Should Not Be Convicted’: Tracing the Origin and the Implications of the Maxim (December 31, 2007). PRESUMPTIONS, Icfai University Publications, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1133070.

Nor does the United States Supreme Court agree that “beyond a reasonable doubt” is incapable of being defined. ^[8]“We have never held that the concept of reasonable doubt is undefinable, or that trial courts should not, as a matter of course, provide a definition.” Victor v. Nebraska, 511 U.S. 1, 26, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). Quite the contrary, according to Justice Ginsburg, concurring in the full opinion of the court,

[E]ven if definitions of reasonable doubt are necessarily imperfect, the alternative — refusing to define the concept at all — is not obviously preferable. ^[9]Victor v. Nebraska, supra, 511 U.S. at 26, conc. opn. of Ginsburg, J.

So, if the problem is not that the phrase is undefinable, what is the problem?

As I’ve already said, the problem is primarily political. Prosecutors — and many trial judges over at least the last 20 to 30 years are prosecutors in black robes, who have proven themselves incapable of recognizing the differences between the duties of their current assignments and the assignments they had when they were actually called prosecutors — do not want people to understand just how much certainty is required to convict. As I noted above, there was a time when acquittal was preferred over conviction. In fact, a couple of centuries ago, allegedly, juries tended to acquit more often than to convict. ^[10]Randolph N. Jonakait, Finding the Original Meaning of American Criminal Procedure Rights: Lessons from Reasonable Doubt’s Development, p. 20 (October 12, 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1691224.

Those days are gone.

As Gideon, writing over at apublicdefender, notes,

Research into the psychology of jurors has shown that people are predisposed to convicting someone who is on trial, that jurors are more often likely to side with the State and their show of power. It’s an “us vs. them” mentality….

William Tucker, who has apparently written a lot about energy, particularly nuclear energy, demonstrates why in an article complaining about how we hamper justice and coddle criminals.

I once wrote a book on crime and after hearing this phrase [that it was better for 10, or 100, guilty to go free than for one innocent to be convicted] for about the 20th time, I came to one conclusion: Whoever said it wasn’t planning on living in the same neighborhood with those 10 or 100 guilty criminals.

Tucker goes on to complain:

Over the last 40 years, a series of U.S. Supreme Court rulings have turned criminal investigations into an incredible obstacle course, wringing just about every last trace of street smarts out of the law enforcement profession.

Allegedly responding to an “emergency preparedness consultant” who (according to Tucker) had not heard of “probable cause” and did not know that sometimes once in awhile evidence is suppressed by a court — what rock did he crawl out from under? — Tucker says:

I told him about Mapp vs. Ohio and “stop and frisk” and probable cause and the exclusionary rule. This was all new to him but he understood right away — cops aren’t allowed to go on “hunches” and “professional instincts” anymore. Instead, they quote citations from some court decision of twenty years ago. They may look in plain sight during a traffic stop but they cannot open a trunk without a warrant. When they apply for a warrant, they have to describe…exactly what they expect to find before they find it. There can be no generalizations or “boilerplate material.”

Every criminal proceeding in the country begins with an “evidentiary hearing” in which the defendant can — as Alan Dershowitz coined it — “put the state on trial.” What were the circumstances that led to the warrant? Where was the “probable cause” (the phrase is taken directly from the Fourth Amendment)? Why would a suspect ever make self-incriminating remarks if he had understood his Miranda rights? His confession must have been coerced. And on and on.

Oh, the horror of constitutional rights! ^[11]I would love to work in the kind of courtrooms Tucker believes exist, where such rights are actually enforced.

This tough-on-crime attitude — and the belief that the Constitution coddles criminals — that has evolved over the last several decades is not limited to those running for obviously-political offices. How could it be? Even where judges themselves are not elected, those who appoint judges are.  The mob which increasingly screams for more blood is, for whatever reason, incapable of understanding the unintended consequences of granting their requests. They do not realize that the problem of crime is made worse by creating an entire class of people who are incapable of finding decent work (if they can find work at all), incapable of living anywhere except under a bridge, no longer able to feel themselves a part of society.

And they do not realize that because increasing numbers of these people are innocents, convicted by a standard which has been watered down at least partly through the failure to explain it properly to juries, they could be next.

Of course, judges are plucked from that same pool of “humanity.” Not reasonably well educated in the history of jurisprudence, they come to the court without the historical underpinning that would give them a good handle on, among other things, the “beyond a reasonable doubt” standard. Large numbers of them are former prosecutors, who actively worked to water-down the standard even before they became judges with the power to do so by ruling.

Not only that, but the majority of judges are too busy, even if they had the desire to do the work of understanding. I don’t know what judging was like “in the old days” (although attorneys were apparently better educated). But I do know that there are only so many hours in a day. Many judges have families and lives to live. Yet they frequently sit all day in a courtroom, judging. I can’t help but wonder when they find the time to read, to study, to think things through.

No, I have to agree with the United States Supreme Court: it’s not that “beyond a reasonable doubt” is undefinable and thus we cannot tell juries what it means.The problem is that the America of today is not the America that grounded itself upon such principles.

The problem is a combination of a lack of education and, more importantly, political will.