'n' guilty men.

• Author: Volokh, Alexander
• Position: Determinations of the number of guilty who may go free in order for the innocent not to be wrongly convicted

And Abraham drew near, and said, Wilt thou also destroy the righteous with

the wicked?

Peradventure there be fifty righteous within the city: wilt thou also

destroy and not spare the place for the fifty righteous that are therein?

That be far from thee to do after this manner, to slay the righteous with

the wicked: and that the righteous should be as the wicked, that be far

from thee: Shall not the Judge of all the earth do right?

And the Lord said, If I find in Sodom fifty righteous within the city, then

I will spare all the place for their sakes.

And Abraham answered and said, Behold now, I have taken upon me to speak

unto the Lord, which am but dust and ashes:

Peradventure there shall lack five of the fifty righteous: wilt thou

destroy all the city for lack of five? And he said, If I find there forty

and five, I will not destroy it.

And he spake unto him yet again, and said, Peradventure there shall be

forty found there. And he said, I will not do it for forty's sake.

And he said unto him, Oh let not the Lord be angry, and I will speak:

Peradventure there shall thirty be found there. And he said, I will not do

it, if I find thirty there.

And he said, Behold now, I have taken upon me to speak unto the Lord:

Peradventure there shall be twenty found there. And he said, I will not

destroy it for twenty's sake.

And he said, Oh let not the Lord be angry, and I will speak yet but this

once: Peradventure ten shall be found there. And he said, I will not

destroy it for ten's sake.(1)

1. THE n CONTROVERSY

   "[B]etter that ten guilty persons escape, than that one innocent suffer," said English jurist William Blackstone.(2) The ratio 10:1 has become known as the "Blackstone ratio."(3) Lawyers "are indoctrinated" with it "early in law school."(4) "Schoolboys are taught" it.(5) In the fantasies of legal academics, jurors think about Blackstone routinely.(6)

   But why ten? Other eminent legal authorities through the ages have put their weight behind other numbers. "One" has appeared on Geraldo.(7) "`It's better for four guilty men to go free than one innocent man to be imprisoned,'" says basketball coach George Raveling.(8) However, "[i]t's better to turn five guilty men to loose than it is to convict one innocent one," according to Mississippi's former state executioner, roadside fruit stand operator Thomas Betty Bruce, who ought to know.(9) "[I]t is better to let nine guilty men free than to convict one innocent man," counters Madison, Wisconsin, lawyer Bruce Rosen.(10) Justice Benjamin Cardozo certainly believed in five for execution,(11) and allegedly favored ten for imprisonment,(12) which is a bit counter-intuitive. Benjamin Franklin thought "[t]hat it is better a hundred guilty persons should escape than one innocent person should suffer."(13) Mario Puzo's Don Clericuzio heard about letting a hundred guilty men go free and, "[s]truck almost dumb by the beauty of the concept . . . became an ardent patriot."(14) Denver radio talk show host Mike Rosen claims to have it argued "in the abstract, that it's better that 1000 guilty men go free than one innocent man to be imprisoned, and says of the American judicial system, "Well, we got our wish."(15)

   Or, perhaps, the recommended number of guilty men should be merely "a few,"(16) "some,"(17) "several,"(18) "many" (particularly, more than eight),(19) "a considerable amount,"(20) or even "a goodly number."(21)

   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."(22) 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."(23) It is unclear whether a "considerable" number is greater or less than an "appreciable" one.(24)

   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.

2. n BY DIVINE REVELATION

   Abraham's celebrated haggle in the book of Genesis, allegedly written by Moses(25) but also attributed to God,(26) provisionally sets a value of n at (P - 10) / 10, where P is the population of Sodom.(27) As it turns out, however, no innocents were killed in the destruction of Sodom: There were only four righteous people in the city, and they were all saved, although they lost their real estate.(28) Previously,(29) God had killed the entire human population of the Earth because of its wickedness(30) (except for Noah and his family(31)) in a mass capital punishment which, although carried out without the benefits of a jury or any other due process protections, apparently also produced neither false positives nor false negatives. It is said that one day there will be another massive (post-) capital punishment, which will also produce neither false positives nor false negatives.(32) These methods, however, may only be acceptable criminal procedure for God Himself, Who may do whatever He likes.

   Commandments to man can be found in the book of Exodus, by the same Author(s),(33) in which God rejects the tradeoff between convicting the guilty and convicting the innocent, and simply commands, "the innocent and righteous slay thou not."(34) One can take this to imply an infinite value for n, at least in capital cases. The twelfth century Judeo-Spanish legal theorist Moses Maimonides, however, interpreted the commandment of Exodus as implying a value of n = 1000 for the purposes of an execution.(35) He refers to it as the "290th Negative Commandment" and argues that executing an accused criminal on the basis of anything less than absolute certainty of his guilt would lead to a slippery slope of decreasing burdens of proof until convictions would be merely "according to the judge's caprice. Hence the Exalted One has shut this door"(36) against the use of presumptive evidence, for "it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death once in a way."(37)

   Not all gods, however, agree with the Exalted One. The Roman emperor Trajan, who was later deified, wrote to Adsidius Severus that a person ought not "to be condemned on suspicion; for it was preferable that the crime of a guilty man should go unpunished than an innocent man be condemned."(38) For the Romans, then, n = 1 for all cases where a man is to be "condemned," which includes capital cases.

   The most celebrated divine commandment related to punishing the innocent is, of course, Blackstone's. Evidence of Blackstone's divinity is provided by an Arkansas district court, which ruled in 1991 that "Blackstone is, in the law at least, immortal,"(39) and evidence of His miraculous works is supplied by Lord Avonmore, who wrote: "He it was that first gave the law the air of science. He found it a skeleton, and clothed it with life, color and complexion; he embraced the cold statute, and by his touch it grew into youth, health, and beauty."(40) Blackstone's n = 10 applies in all cases of suffering, which is a broader category than both Yahweh's and Trajan's.

   In Islam, moreover, n = 1 for punishment, according to Ayatollah Hossein Ali Montazeri, who was first in line to become the leader of Iran during the mid-1980s.(41) One British writer, commenting on the death of innocent bystanders at the hands of the police during anti-Irish Republican Army crackdowns, wrote, "[f]or a Catholic, oddly enough, it may be better to be shot suddenly like that if you are innocent, than if you are guilty."(42) This view, however, is either out of the ordinary or not widely advertised.

   To date, no major religious wars have been fought over the value of n.(43)

3. DATING n

   A British editorial recently surmised that the "bias against punishment" has its roots in "the most famous of all miscarriages of justice: Christ's crucifixion."(44) In fact, however, people have been mulling over the innocent-guilty tradeoff at least since the ancient Greeks. Aristotle allegedly wrote that it is a "serious matter to decide [that a slave] is free; but it is much more serious to condemn a free man as a slave," and gave the same judgment, also with n = 1, about convicting innocents of murder.(45) Others date the maxim to the codes of Athens.(46) Deposed Panamanian leader and amateur classical scholar, Manuel Noriega, has apparently traced the saying--with n = 1, but in the more generalized context of conviction--back to Socrates.(47)

   According to some researchers, though, the maxim is considerably older. At least three commentators--one Hebrew prophet, one Founding Father, and one appellate judge--have dated it back to the beginning of time. Moses's precept, from the book of Exodus,(48) was supposedly handed down from Someone who was around "in the beginning."(49) Benjamin Franklin claims that the maxim, with n = 100 and for suffering, "has been long and generally approved; never, that I know of, controverted."(50) According to Ninth Circuit Judge Alex Kozinski, the "popular notion"(51) that n = 10 (for conviction) is just something "`[w]e have always said.'"(52) A then-future U.S. president, John Adams, was more modest and merely dated the saying (with n = a variety of numbers between five and twenty, and for suffering) back to the beginning of laws, saying that "there never was a system of laws in the world, in which this rule did not prevail."(53)

4. n IN ENGLISH HISTORY

   In the ninth century, King Alfred is said to have hanged a judge for having executed a defendant "when the jurors were in doubt about their verdict, for in Case of doubt one should rather save than condemn."(54) A century later, the laws of King AEthelred the Unready--considered...