The economics of innocence

You wake up one morning to find a bailable warrant lying at your doorstep. A criminal complaint has been filed against you for an offence you may never have committed, before a court in a state 400 kilometres from your home. The warrant itself is written in a language you do not understand.

In one hand, you hold a piece of paper that commands your presence in a distant courtroom; in the other, you hold a job that permits no leave at your own convenience and from which 6 days of attendance a week is the price of not being terminated. You are the sole breadwinner in your household. A child waits for you at home. Your ageing parents require medical attention from time to time, arrangements that only you are in a position to make. The quiet machinery of your household runs, in no small part, because you are present to run it.

The conventional answer to the warrant is swift and, on its own terms, unimpeachable. It is, after all, only a warrant. The law presumes you innocent until the prosecution proves otherwise and the burden of proving guilt rests entirely upon the State. If the case is false, the process will, in time, vindicate you. This is the architecture of criminal jurisprudence and it is not wrong. Yet, there is a question that criminal jurisprudence does not ask often enough: “what are the economics of innocence?”

The question may initially appear almost paradoxical. If a person is innocent, why should innocence have an economic cost at all? Yet, that is precisely where the problem begins. The presumption of innocence is a legal principle. Living under that presumption, however, is a social and economic experience. Its cost is not measured by the strength of the doctrine, but by the quiet arithmetic of what a person must spend to actively invoke it.

In this backdrop, I argue that the economics of innocence is the direct and indirect cost incurred by an accused person in navigating the criminal justice system while attempting to establish, or preserve, his or her innocence. We have long examined the economics of crime: why people commit offences and what economic incentives shape criminal behaviour. Perhaps criminal justice requires another economic lens altogether which is not the lens of why a person commits a crime, but the economic lens of what happens to a person who did not commit one.

To see why this economic lens matters in respect of innocence, let us hold the hypothetical still and change only one variable. Suppose the very same bailable warrant stated above, carrying the very same allegations, is served upon two persons - X and Y - on the very same morning. Nothing distinguishes the paper in either hand. What distinguishes X from Y is everything that surrounds that paper.

X is a person of means. He runs a business sufficiently autonomous to survive his temporary absence. Within hours, X can retain a competent lawyer in his own city and another in the city where the complaint has been lodged. He can obtain the case papers, study the allegations and begin shaping a defence strategy well before he ever sets foot inside the courtroom. Distance, for him, is not an obstacle but merely a logistical inconvenience. Importantly, X possesses some procedural knowledge as well. Through his education, social networks or prior familiarity with the legal system, X knows that the courts have long recognised the power to dispense with an accused's personal attendance and permit appearance through counsel, after initial stage of proceedings.

For X, therefore, the warrant is never allowed to become a crisis. Rather, it is absorbed and outsourced to lawyers, to money and to the law's own procedural generosity. Therefore, what begins as a warrant quietly acquires the texture of a short, if unwelcome, trip out of town. In fact, X from the day of has know-how and means to invoke the innocence presumption. 

Now let us return to the person with whom we began. Let us call him Y. He is the person standing at that same doorstep, holding that same warrant, with the same allegation and the same legal presumption of innocence. But Y does not begin where X begins.

For Y, the first obstacle is not necessarily the allegation itself. It is understanding what the warrant means. How does he decode a document written in a language and legal vocabulary that he may barely understand? And even before these questions are answered, another set of thoughts begins to occupy his mind: how will I manage the expense? How will I travel hundreds of kilometres to that court? What will happen to my job while I am travelling and attending court? What if my employer removes me for taking leave? More importantly, how will I pay the lawyer?

At this stage, one may notice that Y is not yet asking the question that the criminal justice system expects an accused person to ask: How will I prove my innocence? That question has not even become his immediate concern. Y’s mind is occupied by a more elementary calculation: Can I afford to participate in the process through which I am expected to establish my innocence? For Y, the ability to invoke the presumption of innocence is in itself a conscious economic decision.

This is the crucial difference which shows that the presumption of innocence as a concept may act universally, but the capacity to defend innocence is not. The law may place X and Y under the same presumption of innocence; it may give them the same procedural rights and subject them to the same legal standards. However, the economic circumstances in which those rights have to be exercised can be radically different.

Y, in this sense, is not a rhetorical convenience invented to make a point. He is, statistically, closer to the reality of India’s undertrial population than X will ever be. The institutional support meant to bridge this gap is, on paper, robust. Article 39-A of the Constitution and the Legal Services Authorities Act, 1987 guarantee free legal aid to anyone unable to afford a lawyer, operationalised nationally through the National Legal Services Authority. In practice, the bridge barely holds.

A 2018 study found that India has roughly one legal aid lawyer for every 18,609 people. Several states manage barely one legal aid lawyer for every 10,000 to 30,000 eligible citizens. Perhaps more revealing still is how few people even reach that lawyer. A nationwide study of admissions between 2016 and 2019 found that only about 7.91 per cent of undertrials entitled to free legal aid actually accessed it. Not because the remaining 90+ per cent could afford private counsel, but because awareness, access and functioning legal infrastructure are themselves scarce resources, distributed as unevenly as everything else in this account.

This is the quiet point the legal doctrine of innocence tends to overlook. The presumption of innocence does not descend upon an accused person automatically. It must be invoked  actively, procedurally and, more often than not, at an economic price so as to convert the innocence presumption from an abstract entitlement into a lived reality.

Now, taking the argument one step further, suppose Y manages to reach the court. Suppose the journey, the lost wages and the legal expenses continue for years. Suppose, finally, the court reaches the conclusion that Y was innocent. His presumption of innocence has been honoured.

The question is: what exactly has been restored? The acquittal definitely restores his legal position. It may also restore his liberty. It may clear the immediate criminal consequence. But does it restore the wages he lost? Does it return the money borrowed for legal expenses? Simply put, does it pay the cost incurred in proving innocence?

This reveals another dimension of the economics of innocence. The criminal justice system may eventually recognise your innocence, but it does not necessarily reimburse the cost of surviving until that innocence is recognised. An acquittal can provide legal restoration without economic restoration. There is also a cost that conventional economic calculations struggle to capture - the cost borne by the family members of Y who supported him to prove his innocence.

Perhaps, the criminal process has an economic life of its own - one that begins long before guilt is established and may continue long after innocence is judicially recognised. This is not to say that the presumption of innocence is a fiction. It is to recognise that the presumption is not self-executing. Between a right and its exercise lies an economy.

Therefore, the warrant that arrived at Y’s doorstep asked him not only to prove that he was innocent. It first required Y to show that he has the means to participate in the process through which his innocence could be proved. Certainly, the law presumes everyone innocent. But not everyone can afford to live through the process of being presumed innocent. That is the economics of innocence.

Sahajveer Baweja is an Advocate practicing before High Court of Rajasthan.