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.

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Historical 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),[1][2] 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?[3] ... What if ten are found there?" He [The Lord] said, "I will not destroy it for the ten's sake."[4]

 ”

The twelfth-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."[1][5][6]

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 [one hundred] guilty Persons should escape than that one innocent Person should suffer".[7]

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;"[1] and Pol Pot[8] and Wolfgang Schäuble[9] have made similar remarks. The latter said in the context of crime prediction (not crime punishment) that he believes that it is not better to let ten terrorist attacks happen than to try to hinder one possibly innocent person to conduct one.

Alexander Volokh cites an apparent questioning of the principle, with the tale of a Chinese professor who responds, "Better for whom?"[1]

References

  1. ^ a b c d "n Guilty Men", 146 University of Pennsylvania Law Review 173, Alexander Volokh, 1997.
  2. ^ Why Terrorism Works: Understanding the Threat, Responding to the Challenge, Yale University Press, Alan M. Dershowitz, 2003
  3. ^ Genesis 18:23 , World English Bible (draft form)
  4. ^ Genesis 18:32 , World English Bible (draft form)
  5. ^ Moses Maimonides, The Commandments, Neg. Comm. 290, at 269-271 (Charles B. Chavel trans., 1967).
  6. ^ Goldstein, Warren (2006). Defending the human spirit: Jewish law's vision for a moral society. Feldheim Publishers. p. 269. ISBN 9781583307328. http://books.google.com/books?id=uuizffmvKqQC&pg=PA269. Retrieved 22 October 2010. 
  7. ^ 9 Benjamin Franklin, Works 293 (1970), Letter from Benjamin Franklin to Benjamin Vaughan (Mar. 14, 1785)
  8. ^ Locard, Henri. Pol Pot's Little Red Book: The Sayings of Angkar. Silkworm Books, 2004. pp. 209.
  9. ^ "Schäuble: Zur Not auch gegen Unschuldige vorgehen". FAZ. http://www.faz.net/s/Rub594835B672714A1DB1A121534F010EE1/Doc~E307DE59120324224ACCD7CA59A6F1C17~ATpl~Ecommon~Scontent.html. 

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