For this fortnight’s debate, there
will be a debate about the death penalty on Blackstone's formulation: "better
that ten guilty persons escape than that one innocent suffer.”
I choose this debate for the
fortnight in loving memory of Sir William Blackstone who died on this date, 14
February 1780. He would have been 290 years old if he was alive today!
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Sir William Blackstone
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Sir William
Blackstone KC SL (10
July 1723 – 14 February 1780) was a British jurist, judge and Tory politician
of the eighteenth century. He is most noted for writing the Commentaries on the
Laws of England. Born into a middle class family in London, Blackstone was
educated at Charterhouse School before matriculating at Pembroke College,
Oxford in 1738. After switching to and completing a Bachelor of Civil Law
degree, he was made a Fellow of All Souls, Oxford on 2 November 1743, admitted
to Middle Temple, and called to the Bar there in 1746. Following a slow start
to his career as a barrister, Blackstone became heavily involved in university
administration, becoming accountant, treasurer and bursar on 28 November 1746
and Senior Bursar in 1750. Blackstone is considered responsible for completing
the Codrington Library and Warton Building, and simplifying the complex
accounting system used by the college. On 3 July 1753 he formally gave up his
practise as a barrister and instead embarked on a series of lectures on English
law, the first of their kind. These were massively successful, earning him a
total of £56,000 in 2011 terms, and led to the publication of An Analysis of
the Laws of England in 1756, which repeatedly sold out and was used to preface
his later works. On 20 October 1758 Blackstone was confirmed as the first
Vinerian Professor of English Law, immediately embarking on another series of
lectures and publishing a similarly successful second treatise, titled A
Discourse on the Study of the Law. With his growing fame, Blackstone successfully
returned to the bar and maintained a good practice, also securing election as Tory
Member of Parliament for the rotten borough of Hindon on 30 March 1761. In
February 1766 he published the first volume of Commentaries on the Laws of
England, considered his magnum opus - the completed work earned Blackstone
£1,426,000 in 2011 terms. After repeated failures, he successfully gained
appointment to the judiciary as a Justice of the Court of King's Bench on 16
February 1770, leaving to replace Edward Clive as a Justice of the Common Pleas
on 25 June. He remained in this position until his death, on 14 February 1780.
Blackstone's legacy and main work of note is his Commentaries. Designed to
provide a complete overview of English law, the four-volume treatise was
repeatedly republished in 1770, 1773, 1774, 1775, 1778 and in a posthumous
edition in 1783. Reprints of the first edition, intended for practical use
rather than antiquary interest, were published until the 1870s in England and
Wales, and a working version by Henry John Stephen, first published in 1841,
was reprinted until after the Second World War. Legal education in England had
stalled; Blackstone's work gave the law "at least a veneer of scholarly
respectability". William Searle Holdsworth, one of Blackstone's successors
as Vinerian Professor, argued that "If the Commentaries had not been
written when they were written, I think it very doubtful that [the United
States], and other English speaking countries would have so universally adopted
the [common] law". In the United States, copies influenced Marshall, James
Wilson, John Jay, John Adams, James Kent and Abraham Lincoln, and the
Commentaries are cited in Supreme Court decisions between 10 and 12 times a
year.
BLACKSTONE’S
FORMULATION
In criminal law, Blackstone's
formulation (also known as Blackstone's ratio or the Blackstone
ratio) is the principle:
"better that ten
guilty persons escape than that one innocent suffer",
...expressed by the English jurist
William Blackstone in his Commentaries on the Laws of England, published
in the 1760s.
Historic expressions of the principle
The principle is much older than
Blackstone's formulation, being closely tied to the presumption of innocence in
criminal trials. An early example of the principle appears in the Bible
(Genesis 18:23-32), as:
Abraham drew near, and said,
"Will you consume the righteous with the wicked? What if there are fifty
righteous within the city? Will you consume and not spare the place for the
fifty righteous who are in it? ... What if ten are found there?" He [The
Lord] said, "I will not destroy it for the ten's sake."
The 12th-century legal theorist
Maimonides, expounding on this passage as well as Exodus 23:7 ("the
innocent and righteous slay thou not") argued that executing an
accused criminal on anything less than absolute certainty would progressively
lead to convictions merely "according to the judge's caprice. Hence the
Exalted One has shut this door" against the use of presumptive evidence,
for "it is better and more satisfactory to acquit a thousand guilty
persons than to put a single innocent one to death."
Sir John Fortescue's De Laudibus
Legum Angliae (c. 1470) states that "one would much rather that twenty
guilty persons should escape the punishment of death, than that one innocent
person should be condemned and suffer capitally." Similarly, on 3 October
1692, while decrying the Salem witch trials, Increase Mather adapted
Fortescue's statement and wrote, "It were better that Ten Suspected
Witches should escape, than that the Innocent Person should be Condemned."
Other commentators have echoed the
principle; Benjamin Franklin stated it as, "it is
better 100 guilty Persons should escape than that one innocent Person should
suffer".
John Adams
also expanded upon the rationale behind Blackstone's Formulation when he
stated:
“It is more important that innocence be
protected than it is that guilt be punished, for guilt and crimes are so
frequent in this world that they cannot all be punished.
But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, "whether I do good or whether I do evil is immaterial, for innocence itself is no protection," and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”
Alternative viewpoints
More authoritarian personalities are
supposed to have taken the opposite view; Bismarck is believed to have stated
that "it is better that ten innocent men suffer than one guilty man
escape;" and Pol Pot made similar remarks. Wolfgang Schäuble referenced
this principle while saying that it is not applicable to the context of
preventing terrorist attacks.
Alexander Volokh cites an apparent
questioning of the principle, with the tale of a Chinese professor who
responds, "Better for whom?"
OTHER
RESPONSES
Let us hear from other death penalty
supporters who respond to this formulation:
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Joshua Marquis
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We all agree: 10 guilty men should
go free to prevent one innocent from being wrongly convicted. But how about
10,000 guilty, or 100,000, going free? How many victims become too many? What
do we say to the victims of killers like Kenneth McDuff, Robert Massie or Carl
Cletus Bowles, all murderers doing life who got out and killed again? [For select few, death is just 11 December 2005] – Joshua
Marquis, Oregon Clatsop County District Attorney
Sometimes the objection is
framed this way: It is better to let ten criminals go free than to execute one
innocent person. If this dictum is a call for safeguards, then it is well
taken; but somewhere there seems to be a limit on the tolerance of society
toward capital offenses. Would these abolitionist argue that it is better that
50 or 100 or 1,000 murders go free than one innocent person be executed?
Society has a right to protect itself from capital offenses even if this means
taking a finite chance of executing an innocent person. If the basic activity
of process is justified, then it is regrettable, but morally acceptable, that
some mistakes are made. Fire trucks occasionally kill innocent pedestrians
while racing to fires, but we accept the losses as justified by the greater
good of the activity of using fire trucks. We judge the use of automobiles to
be acceptable though such use cause an average of 50,000 traffic fatalities
each year. We accept the morality of a defensive war even though it will result
in our troops accidentally or mistakenly killing innocent people. ["Why the
Death Penalty Is Morally Permissible," from the 2004 book edited by Adam
Bedau and titled Debating the Death Penalty: Should America Have Capital
Punishment?] - Louis Paul Pojman,
American Philosopher
“If
the punishment of an innocent person is a mistake of justice administration,
failure to punish a criminal indicates that the absence of justice, which is a
worse mistake.” – Immanuel Kant, German Philosopher
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G. Edward Griffin
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"If
we design a legal system that will be so generous to the suspect that there is
absolutely no possibility of unjustly convicting that one out of ten thousand
defendants who, in spite of overwhelming evidence, is really innocent, then we
have also designed a legal system that is utterly incapable of convicting the
other 9999 about whose guilt there is no mistake." [The Great Prison Break] - G. Edward Griffin (born November 7, 1931) is an
American film producer, author, and political lecturer.
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Murray Buttrose
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“You have been told that it
was better that 10 guilty men should go free rather than one innocent man
should be convicted. Of course it would be better, but that is not good enough.
That such a situation should be allowed to exist and to grow and to develop in
stature would, in my opinion, constitute a grave reflection on the administration
of the criminal jurisprudence of any civilized country. It is, gentlemen of the
jury, more than ever necessary in this present day and age that the rule of law
should be proclaimed aloud for all to hear: that those who offend against it
shall be punished; and those who observe and obey it shall be allowed to live
in freedom and security under it.” - Murray
Buttrose was a High court judge in The Supreme Court of the Republic of
Singapore from 24 December 1956 to 30 July 1968, he retired and went to live in
England. He was born in Australia and was the last of the British expatriate
judges to serve in Singapore, where he had worked in the legal profession for
23 years.
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Stephen Pollard
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Please see
this article from Stephen Pollard, who wrote on why he changed from a strong
opponent to a supporter of the death penalty:
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