Punishment

If one has the right not to be punished unless one is guilty, has one the right to the most complete and precise system of judgement, no matter how costful it might be?

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The word "right" is generally used more broadly than this, so that rights may give way when a lot is at stake. Some philosophical literature may suggest otherwise -- people talk of rights as "side constraints" or "trumps" -- but when you look more closely, they too agree that most rights should be understood as giving way at some point (though for Nozick this point comes rather late: when there is the threat of "catastrophic moral horror").

How much needs to be at stake, and for whom, are matters that get built into the content of the right. Thus, in some jurisdictions property rights are quite strong (property can be expropriated only for an overwhelmingly important purpose) whereas in other jurisdictions property rights are much weaker. Even in the latter jurisdictions, the word "right" is not out of place, so long as an expropriation is based on more than just a showing that it would be better on the whole for this property right to be infringed. You do not have a property right in your car if you must compete on equal terms with others for its use (e.g., show that you need it today more than they do).

Most rights, both moral and legal, are then of this form: When you have a right to X, then no one is permitted to deprive you of X unless this is done for a purpose of such-and-such kind and importance, and unless compensation of such-and-such kind is offered.

Now let's apply all this to the right that interests you, the right not to be punished unless one is guilty. Here deliberate infringement is rarely at issue (though it may be for a judge who considers sending an innocent person to jail to scare off would-be law-breakers). Rather, the problem is probabilistic infringement, running a risk that we'll be infringing the right in question. A general prohibition on ever running any such risk would be very constraining -- you could never drive a car, for instance, because you're thereby subjecting others to a tiny risk of a right-infringing physical injury. Must we minimize the risk, by reducing the speed limit "as low as possible", for instance? I don't think so. But we must keep the probability below certain thresholds that are determined in part by the cost of lowering these thresholds even further.

In the punishment case, one cost is financial, the cost of sophisticated evidence collection, trials, and so on. But another very important cost is crime: As standards of evidence are raised, more guilty go free, possibly to commit another crime, and more people are insufficiently deterred from choosing a career in crime. Now in accordance with the above analysis, one enjoys a right not to be punished unless one is guilty only if one's interest in not being so punished is given greater weight than the interests of potential crime victims. This is suggested in the famous formulation by William Blackstone: “It is better that ten guilty persons escape than one innocent suffer.” Put more bluntly, it is better that ten innocent persons be victimized by criminals than that one innocent person be officially victimized by us. Now what the correct ratio is here, the ratio at which no strengthening of the protections of the accused are thought to be required by their right, this is a matter of dispute, and philosophy can hardly give a precise answer (such as "8.39:1"). What philosophers can say is that people enjoy something worthy of the name "right" only when this ratio is a good bit above 1:1. What empirical studies can add is that some groups in our society have not enjoyed even the right you speak of in even the weakest sense of the word. In many states, criminal justice has been practiced in ways that foreseeably led to huge numbers of African Americans being innocently convicted and very severely punished, and these wrongs could have been very largely avoided through reforms of these practices that would have had a negligible impact on crime rates or none at all.

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