July 2, 2021

A longstanding tenet of justice, in the US and elsewhere, is a maxim known as Blackstone’s ratio: “It is better that ten guilty persons escape than that one innocent suffer.”

Americans love this quote. Not just for its lyrical qualities, but for the way it feels to say it, like planting your very own little flag on the topmost point of the moral high ground. We love it for the principles it enshrines: justice, fairness, protection of the vulnerable from authoritarian overreach.

That is, until one of those theoretical guilty persons actually escapes, in real life, and all those pesky rights they’re entitled to suddenly become really inconvenient.

Bill Cosby is the latest case to put Americans’ principles to the test, after his 2018 conviction for aggravated indecent assault — a landmark moment in the #MeToo movement — was overturned this week on a legal technicality. In 2005, Cosby was sued in civil court by a woman who alleged that he’d drugged and assaulted her. (This was long before the reckoning with Cosby’s history of serial sexual abuse that began in 2014 and ultimately resulted in 60 women coming forward with allegations of their own.) At the time, there wasn’t enough evidence to bring a criminal case against Cosby — and district attorney Bruce Castor made an agreement with the comedian: if Cosby waived his constitutional rights against self-incrimination, and testified truthfully in the civil case, he would not be prosecuted in criminal court.

Cosby did testify, did incriminate himself and ended up settling the lawsuit for $3.4 million. And while it’s easy to argue in hindsight that Castor never should’ve made such a deal, at the time, this was the next-best thing to seeing justice served. With no hope of moving forward on a criminal prosecution, here, at least, was a way that Cosby could be made to suffer consequences for what he’d done (and for his victim to receive recompense for the pain she’d experienced).  But in 2018, as the allegations against him piled up, a different prosecutor looked back at that case and decided to charge Cosby with criminal assault using his testimony from the civil case — and reneging on the promise made by Castor more than ten years before.

Even at the time, both the prosecutor and the judge in Cosby’s criminal case knew that they were violating his due process right, and creating possible grounds for acquittal, by failing to uphold the agreement. So the verdict this week, handed down by the Pennsylvania Supreme Court, is just a confirmation of what the law already implied: if one prosecutor makes a promise on behalf of the State, another prosecutor can’t come along and ignore it.

On the one hand, this is an enormous win for due process protections that puts important limits on how prosecutors can abuse their power. On the other, of course, it means that a rapist walks free (albeit after serving two years in prison).

And yet Cosby’s acquittal should still be welcomed — not just because it upholds an important principle, but because it sets a precedent for other cases, including those of sympathetic (or even innocent!) defendants who might otherwise have been railroaded by prosecutors.

For in reality, this is how it often works. As Andrew Fleischman, a defence attorney who works on behalf of wrongfully convicted clients in Georgia, told me: “Many of our most important rights come from people who suck.”

The Miranda warning, for instance — the one that starts “you have the right to remain silent” — stems from the case of Ernesto Miranda, who kidnapped and raped a teenage girl in 1963. Miranda was totally guilty of a heinous crime (and he was convicted again at a second trial, despite the exclusion of his illegally obtained confession). But in overturning his first conviction, the court created a vital protection for all Americans, including people who are young, poor or otherwise vulnerable to being manipulated by the cops into incriminating themselves. Now, every person placed under arrest must be verbally instructed that they have the right to shut up and ask for a lawyer.

Meanwhile, the law that protected Cosby also protects people with far less wealth or resources, in a system where the state already enjoys immense power to wreck the lives of people who get caught up in the criminal justice system. Fleischman notes, for instance, that it’s not unusual for people charged with a crime — even something minor like marijuana possession — to have their children taken away by the state (a process that prosecutors often trigger intentionally, so that they can leverage the possibility of being reunited with the child to convince distraught parents to cooperate.)

It’s not hard to imagine a nightmare scenario in which the prosecutor promises a parent immunity from prosecution, and a better chance at getting their child back, in exchange for truthful testimony at the parental rights hearing in civil court — and then reneges on the agreement, using that testimony to bring a criminal case. But now, thanks to the precedent set by Cosby’s case, prosecutors won’t just get smacked down on appeal for abusing their power in this way; they’re also less likely to try it to begin with.

If anyone should recognise the value of a due process victory, even for a terrible person like Bill Cosby, it’s American progressives (for whom criminal justice reform and decarceration is usually a central concern.) Instead, many are outraged over the acquittal. Partly this reflects a tendency on the Left to talk out of both sides of one’s mouth on the issue of crime, where decarceration and restorative justice is great, right up until it benefits someone we don’t like. (Take the aftermath of the January 6 insurrection, when the same people who’d downplayed crimes like looting and arson during the summer protests of 2020 suddenly developed a wild enthusiasm for throwing the book at lawbreakers.)

But it’s also a failure of imagination: even as many progressives would readily agree that our law enforcement officers have too much power and too little accountability, that too many people receive draconian punishments that don’t fit their crimes, or that innocent people get railroaded every day by overzealous prosecutors who just want to put someone in jail, they’re also sure, deep down, that the someone will always be someone else. Not them, or someone they love.

Probably, they’re right. But if they’re not, and if they’re unlucky enough to someday end up getting caught in the grinding machine of our criminal justice system, the due process and civil liberties that sometimes allow bad people to go unpunished might suddenly seem like a pretty good thing.