n guilty men
“Better that ten guilty persons escape, than that one innocent suffer,” said English jurist William Blackstone. The ratio 10:1 has become 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, “it’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. “It 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 counterintuitive. Benjamin Franklin thought “that 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, “struck 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,” or even “a goodly number.”
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.
n guilty men, then. The travels and metamorphoses of n through all lands and eras are the stuff that epic miniseries are made of. n is the father of criminal law. This is its story.
Alexander Volokh, n guilty men, 146 U. Pa. L. Rev. 173 (1997).