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Is Blackstone’s formulation just wrong?

November 6, 2013

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In case you didn’t know, Blackstone’s formulation is: “It is better that ten guilty persons escape than that one innocent suffer”. We learned this in law school like it is the gospel truth. To put this in historical context, this passage is from Commentaries on the Laws of England, published in 1760.

Given the time it was written it’s easy to understand why this principle became a foundation of American juridical thought. I wouldn’t be so presumptuous as to argue against this principle on philosophic or moral grounds.

What I will do is tell about an experience I had and examine Blackstone’s formulation from that perspective.

I guess everyone who lives in modern society is the victim of a crime eventually, especially if you live in a big city. I went to college and Law School in New York City and I owned a car. Thus, as much as Des Cartes Gogito ergo sum is a fact, I owned a car in New York City, therefore, I was a crime victim.

Having your car radio stolen is a mildly traumatic experience the first time. I can assure you it gets easier the next time(s).

The thing about having a car radio stolen is that the perpetrator wasn’t specifically targeting you. He or she wanted to steal something and picked as easy target. No need to take it personally. (BTW, does this still happen? Do thieves still steal car radios?)

Fast forward ten years… The crime that was committed against me was personal. I can’t get into too many details, but my family and I were targeted. The crime wasn’t violent, sexy or dealing with huge sums of money, so the police and the prosecuting authorities weren’t interested (to say the least).

But, I was damaged and I’m the victim. No one is going to punish the criminal unless I do, and I’m living in a world where Blackstone’s formulation rules the day.

I know the criminal, I know the crime, the perpetrator even admitted the crime to me, but the system is willing to let him off 10 times, before they’ll agree to punish him.

Is that really a just result? 10 criminals commit more than 10 more crimes. If they aren’t punished, will they ever stop?

Does Blackstone’s formulation make us all more likely to be victims?

Avrum Aaron, a 1994 Graduate of Columbia Law School is the COO of Legal Outsourcing Partners, LLC. Reach him at avrum@lop-llc.com.

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3 Comments
  1. bhaaron@hotmail.com permalink

    you tell me???????? bad guys escape and johnathan pollard suffers

  2. Also been a victim of crime where nobody cares. It was a really eye-opening experience as to how the criminal “justice” system actually works (in terms of the motivations of police to investigate, how police write reports, when prosecutors choose to prosecute, how vigorously, etc.) as opposed not just to the abstract theory of criminal law you learn in law school but also most people’s basic assumptions about crime and prosecution.

    –Tanner Jones, CLS ’11

  3. David Eisen permalink

    With all due respect to Blackstone, in this regard he was guilty of plagiarizing Maimonides who preceded him by over 500 years and was far more emphatic in his formulation. See Maimonides, Book of Mitzvot, Negative Precept 290 in which he writes on the duty of judges to do their utmost to prevent a false conviction that “to acquit ONE THOUSAND guilty individuals is far better and more desirable than killing one innocent person on one occasion.”

    (ולזכות אלף חוטאים יותר טוב ונכסף מהרוג זכאי אחד יום אחד)

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