Errors of Justice: Nature, Sources and

In this book, Brian Forst takes a fresh new perspective on the assessment of criminal justice policy, examining the prospect of assessing policies based on their impact on errors of justice: the error of failing to bring offenders to justice, on the one hand, and the error of imposing costs on innocent people and excessive costs on offenders, on the other. Noting that we have sophisticated systems for managing errors in statistical inference and quality control processes and no parallel system for managing errors of a more socially costly variety - on matters of guilt and innocence - the author lays the foundation for a common sense approach to the management of errors in the criminal justice system, from policing and prosecution to sentencing and corrections. He examines the sources of error in each sector, the harms they impose on society, and frameworks for analyzing and reducing them.

Preface

xiii

Acknowledgments

xv

1 The Problem

1

(9)

Introduction

1

(2)

What Is an Error of Justice?

3

(4)

Aim and Overview of the Book

7

(3)

2 Errors of Due Process

10

(12)

Introduction

10

(1)

What Is Due Process?

11

(2)

Landmark Due Process Cases

13

(3)

The Sources of Due Process Errors and Their Social Significance

16

(3)

Managing Due Process Errors

19

(2)

Conclusion

21

(1)

3 Errors of Impunity

22

(9)

Introduction

22

(1)

What Is an Error of Impunity?

23

(1)

The Sources and Consequences of Errors of Impunity

23

(4)

Managing Errors of Impunity

27

(3)

Conclusion

30

(1)

4 Frameworks for Analyzing the Incidence of Justice Errors

31

(14)

Introduction

31

(1)

Managing Errors of Statistical Inference: The Problem of Reliability

32

(4)

Managing Errors of Statistical Inference: The Problem of Validity

36

(4)

Parallels between Errors of Statistical Inference and Errors of Justice

40

(1)

Managing Errors in Production and Service Delivery Processes

41

(2)

Conclusion

43

(2)

5 Assessing the Cost of Justice Errors

45

(12)

Introduction

45

(1)

What Are the Social Costs of Crime and Justice?

46

(2)

Difficulties in Assessing the Social Costs of Crime and Justice

48

(4)

Optimal Levels of Interventions Against Crime

52

(2)

Initial Estimates

54

(1)

Conclusion

55

(2)

6 Standards of Evidence

57

(9)

Introduction

57

(1)

Varying the Parameters

58

(6)

Conclusion

64

(2)

7 Police-Induced Errors

66

(46)

Introduction

66

(1)

Making Sense of Policing Errors

67

(2)

Nature and Sources of Justice Errors Associated with the Police

69

(23)

Managing Justice Errors Attributable to the Police

92

(14)

Balancing Error Management with Other Policing Goals

106

(3)

Conclusion

109

(3)

8 Prosecution Policy and Justice Errors

112

(22)

Introduction

112

(2)

Prosecutorial Discretion and Errors of Justice

114

(2)

Improved Coordination with Police

116

(2)

Errors of Fact, Questions of Culpability, and Tactical Errors

118

(2)

Should the Prosecutor Emphasize Conviction Quality or Quantity?

120

(2)

Analyzing Data on Prosecution under a Range of Assumptions about Factual Guilt

122

(5)

Analysis by Crime Category

127

(4)

Conclusion

131

(3)

9 The Jury

134

(16)

Introduction

134

(2)

Jury Policy, Representativeness, and Justice Errors

136

(4)

How Many Jurors? Must Their Decision be Unanimous?

140

(5)

Jury Dynamics

145

(4)

Conclusion

149

(1)

10 Sentencing and Corrections

150

(34)

Introduction

150

(2)

Optimum Sanctions under Alternative Frameworks

152

(20)

Sources of Excessive Social Costs in Sentencing

172

(1)

Who Might Cause Sentences to be Outside the Norm?

173

(3)

Should Sanctions be Based on Predictions?

176

(2)

Errors in Corrections

178

(2)

The Critical Role of Incentives and Systems of Accountability

180

(2)

Conclusion

182

(2)

11 Homicide

184

(28)

Introduction

184

(1)

Basics about Homicide: Opportunities for Error in Classification

185

(5)

Failures to Bring Homicide Offenders to Justice

190

(7)

Excessive Intrusions in Homicide Cases

197

(2)

The Death Penalty

199

(4)

Remedies and Impediments to the Management of Errors in Homicide Cases

203

(7)

Conclusion

210

(2)

12 A Matter of Legitimacy

212

(9)

Introduction

212

(1)

What Is Legitimacy?

213

(2)

Operationalizing the Notion of Legitimacy

215

(2)

Conclusion

217

(4)

Bibliography

221

(22)

Index

243

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Errors of Justice: Nature, Sources and Remedies

Summary

Table of Contents

Supplemental Materials