Does wrongful conviction lower deterrence and can this explain society's aversion tosanctioning the innocent? This paper argues that for some of the most importantcategories of crime such as murder, assault or robbery, the answer to both questions isno. For these categories of crime, a potential offender need not fear wrongfulconviction for any particular criminal act he or she chooses not to commit. Forexample, if a potential offender decides not to murder another person, he or sheshould not fear being wrongfully convicted of it, since the person will not be dead,and there will therefore be no investigation and no trial. He of she may risk beingwrongfully convicted of another crime, but that risk exists independently of his or herown actions.It may be argued that wrongful conviction lowers deterrence in more indirect ways.First, the possibility of being sanctioned for a crime one does not commit may lowerthe threat of being sanctioned for a crime one commits, if two sanctions are not twiceas threatening as one. Second, if wrongful conviction halts further investigations thatmay lead to the true offender, and third, if a potential offender thinks that if he or shedoes not take advantage of a crime opportunity, he or she may be wrongly convictedin the event that some other person grasps the same opportunity. However, it will beargued that wrongful conviction may also increase deterrence, and the three indirecteffects are in any event unlikely to be quantitatively important in the real world.An implication of the present analysis is that society's aversion to sanctioning theinnocent cannot be rationalized by or reduced to a concern for deterrence.
|Status||Udgivet - 2004|