TwitterFacebookPinterest

The Consequences of Error in Criminal Justice

Epps, Daniel

2014

Volume: 128
Harvard Law Review

Abstract

“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. The Article conducts that analysis, which 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. Rejecting the Blackstone principle would require us to rethink — although not necessarily redesign — various aspects of our criminal-procedure system.

[Also published in: Harvard Public Law Working Paper No. 14-30 ]

Download full text
Only open access items are publicly downloadable
Keywords : , , , , , ,
Entry Type : Journal Article, Position/Working/Briefing Paper
Uploaded By : Rayhan Rashid
Upload date : Thursday, 4 September 2014

Leave a Reply

Your email address will not be published. Required fields are marked *

Archive I: Media Archive

Archives news reports, opinions, editorials published in different media outlets from around the world on 1971, International Crimes Tribunal and the justice process.

Archive II: ICT Documentation

For the sake of ICT’s legacy this documentation project archives, and preserves proceeding-documents, e.g., judgments, orders, petitions, timelines.

Archive III: E-Library

Brings at fingertips academic materials in the areas of law, politics, and history to facilitate serious research on 1971, Bangladesh, ICT and international justice.

Archive IV: Memories

This archive records from memory the nine-month history of 1971 as experienced and perceived by individuals from all walks of life.