So, Blackstone's law states that 1 innocent man going to jail is worse than 10 guilty men being set free. This principle seems to be a fundamental principle for all Western governments.

I'm wondering if this principle has been thoroughly analyzed though? It seems to be a byproduct of Christianity, and isn't it possible that the price society is paying (not being harsh enough on the accused) outweighs the benefits gained ?

Have enough people questioned this principle and done empirical analysis to see if it's a net positive to society?

Also, if we stop using Blackstone's principle and solely view 1 innocent man going to jail to be as bad as 1 guilty man set free, is that compatible with the presumption of innocence?

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  • 2
    The "ratio" : ten vs one, is not very relevant.It is a regulative principle : government and the courts must err on the side of innocence. – Mauro ALLEGRANZA Dec 6 at 13:01
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    Its ground is ethical; see also Historic expressions of the principle with ref to Biblical source. – Mauro ALLEGRANZA Dec 6 at 13:03
  • @MauroALLEGRANZA Agreed. I'm mainly just talking about erring on the side of innocence. So, the view that 1 innocent man getting jailed is worst than 1 guilty man getting set free. I'm questioning why these two scenarios aren't viewed as equally bad. – jack klompus Dec 6 at 13:03
  • In all political and legal matters there is always a balancing act between the interest of the individual vs. the interest of society. Western democracies tend to lean towards individual rights. With that in mind weigh the enormous violation of an innocent individual's interest if jailed, against the marginal violation of societal interest should one (or ten) criminals go free. – christo183 Dec 6 at 14:07
  • It seems to me that there's a necessity to the presumption of innocence, because the domain of possible false accusations is infinite. Kind of a game-theoretic proof. – kbelder Dec 6 at 19:32
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jack klompus, welcome to PSE.

History

The principle is foreshadowed rather in Judaism than Christianity : Genesis 18:32 for example.

The statement "I will not destroy it [Sodom] for ten's sake," Genesis 18:32 ... implies "better P- 10 guilty men escape than ten righteous men be killed," or, dividing both quantities by 10, "better (P- 10) / 10 guilty men escape than one righteous man be killed." Alexander Volokh, 'n Guilty Men', University of Pennsylvania Law Review, Vol. 146, No. 1 (Nov., 1997), pp. 173-216: 177.)

Volokh traces the principle, or prefigurations of it, in scholarly detail via the Ancient Greeks and Romans as well as the Torah.

Rationale

"[B]etter that ten guilty persons escape, than that one innocent suffer," said English jurist William Blackstone. The ratio 10:1 has be- come known as the "Blackstone ratio." Lawyers "are indoctrinated" with it "early in law school." "Schoolboys are taught" it. In the fantasies of legal academics, jurors think about Blackstone routinely.

But why ten? Other eminent legal authorities through the ages have put their weight behind other numbers. "One" has appeared on Geraldo."'It's better for four guilty men to go free than one innocent man to be imprisoned,"' says basketball coach George Raveling. However, " [i] t's better to turn five guilty men loose than it is to convict one innocent one," according to Mississippi's former state executioner, roadside fruit stand operator Thomas Berry Bruce, who ought to know. "[I]t is better to let nine guilty men free than to convict one innocent man," counters Madison, Wisconsin, lawyer Bruce Rosen."' Justice Benjamin Cardozo certainly believed in five for execution,' and allegedly favored ten for imprisonment, which is a bit counter-intuitive. Benjamin Franklin thought "[t]hat it is better a hundred guilty persons should escape than one innocent person should suffer." Mario Puzo's Don Clericuzio heard about letting a hundred guilty men go free and, "[s]truck almost dumb by the beauty of the concept . .. became an ardent patriot."'' Denver radio talk show host Mike Rosen claims to have heard it argued "in the abstract, that it's better that 1000 guilty men go free than one innocent man be imprisoned," and says of the American judicial system, "Well, we got our wish."'

Or, perhaps, the recommended number of guilty men should be merely "a few," "some,", "several," "many" (particularly, more than eight), "a considerable amount,"20 or even "a goodly number."2'

Not all commentators weigh the importance of acquitting the guilty against the value of the conviction of one innocent man. A Georgia circuit court held in 1877 that it was "better that some guilty ones should escape than that many innocent persons should be subjected to the expense and disgrace attendant upon being arrested upon a criminal charge." Moreover, in Judge Henry J. Friendly's opinion, "most Americans would agree it is better to allow a considerable number of guilty persons to go free than to convict any appreciable number of innocent men." It is unclear whether a "considerable" number is greater or less than an "appreciable" one. (Volokh: 174-7.)

Conclusion

It appears to be a part of ordinary (Western) moral thinking that it is worse to let a guilty person go free than to cause suffering to an innocent person. It is not clear, to me at least, on exactly what moral principle this relies. I do not quarrel with the principle; I am simply not clear what it is and on what basis it rests.

Blackstone's principle involves a falsely precise metric. It is not possible to calculate, out of all context, how many of the guilty should go unpunished rather than one innocent person should suffer. Admirable sentiment as the principle may be, it is moral rhetoric rather than moral logic.

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