Tuesday, May 26, 2015
Joel S. Johnson has posted Benefits of Error: A Dynamic Defense of the Blackstone Principle in Criminal Law (Virginia Law Review, Vol. 102, 2016, Forthcoming) on SSRN. Here is the abstract:
William Blackstone wrote, "[B]etter that ten guilty persons escape, than that one innocent suffer." The principle underlying this maxim — that false acquittals are preferred to false convictions — is central to our criminal justice system. Indeed, it is the basis for many procedural rules, including the beyond-a-reasonable-doubt standard of proof. In recent years scholars have offered consequentialist justifications and criticisms for the so-called Blackstone principle, but both sides of the argument have operated from a static perspective, which holds too many of the variables of the criminal justice system constant when weighing two very different types of harm and assumes that the Blackstone principle benefits defendants. Recently, however, a new strand of scholarship has emerged. Daniel Epps has offered a first attempt at comprehensive consequentialist analysis of the Blackstone principle from a so-called "dynamic" perspective.This perspective considers indirect costs such as the effects fewer convictions might have on crime, social meaning, voter attitudes, and law-enforcement behavior. After cataloging these effects, Epps makes two claims: (1) the Blackstone principle does not significantly benefit defendants; and (2) the Blackstone principle reinforces troubling political pathologies that distort policy. This Note offers a first response to the dynamic critique. The move to a dynamic a framework is welcome, but the analysis needs to be refined. Although Epps purports to offer complete analysis, he does not adequately account for the important roles played by various actors in the criminal justice system. Indeed, he relies on questionable assumptions about police officers, prosecutors, legislatures, and citizens. This Note presses on these assumptions in defense of the Blackstone principle. It then introduces an affirmative reason to prefer the Blackstonian world, arguing that the Blackstone principle benefits defendants insofar as it promotes equality. Ultimately, the Note attempts to shore up the proposition that the Blackstone principle significantly benefits innocent defendants.