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 conventional way of thinking about social errors. Typically the pursuit of any particular 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 medical 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 literature at all, the explicit treatment of errors by both the legal system and legal scholars 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 liability, 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 outcomes at trial and the resultant effect on litigation behavior but also with the effect 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 demonstrate 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 altogether eliminating bail.
Larry Laudan & Ronald J. Allen,
Deadly Dilemmas II: Bail and Crime,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol85/iss1/3