Criminal Law Article 128 Harv. L. Rev. 1065

The Consequences of Error in Criminal Justice

Why convicting one innocent person may be better than letting ten guilty people go free



“Better that ten guilty persons escape, than that one innocent suffer” is a revered adage in the criminal law. It serves as shorthand for an important rule about punishment: minimizing wrongful convictions is more important than overall accuracy. This “Blackstone principle” accords with most people’s deeply felt intuitions about criminal justice. This Article challenges that fundamental precept. It begins by situating the Blackstone principle in the history of Anglo-American criminal law. That history shows how the principle gained prominence — most notably, because in Blackstone’s time and earlier, death was the exclusive penalty for many crimes — but provides no compelling justification today. The leading modern argument for the Blackstone principle is that false convictions are simply more costly than false acquittals. But that argument is incomplete, because it focuses myopically on the costs of errors in individual cases. A complete analysis of the Blackstone principle requires taking stock of its dynamic effects on the criminal justice system as a whole. That analysis reveals two significant but previously unrecognized drawbacks of the Blackstone principle: First, its benefits to innocent defendants are smaller than usually assumed; it could even make those defendants worse off. Second, the principle reinforces a widely recognized political process failure in criminal justice, hurting not just defendants but society as a whole. The magnitude of these effects is uncertain, but they could more than cancel out the principle’s putative benefits. The Article then analyzes alternative justifications for the Blackstone principle. None is satisfactory; each rests on dubious empirical assertions, logical errors, or controversial normative premises. There is thus no fully persuasive justification for the principle today. Rejecting the Blackstone principle would require us to rethink — although not necessarily redesign — various aspects of our criminal procedure system.