Slava Novorossiya

Slava Novorossiya

Thursday, February 14, 2013

BLACKSTONE’S FORMULATION [THE DEATH PENALTY DEBATE OF THE FORTNIGHT SUNDAY 3 FEBRUARY 2013 TO SATURDAY 16 FEBRUARY 2013]



         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!


Sir William Blackstone
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:


Joshua Marquis
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


G. Edward Griffin

"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.





Murray Buttrose
“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.


Stephen Pollard
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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