I. The n Controversy
"Better that ten guilty persons escape than that one innocent suffer," 2 says English jurist William Blackstone. 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 But "it's better to turn five guilty men loose than it is to convict one innocent man," according to ex-Mississippi executioner and roadside fruit stand operator Thomas Berry Bruce, who ought to know. 9 "It is better to let nine guilty men free than to convict one innocent man," counters lawyer Bruce Rosen from Madison, Wisconsin. 10 Justice Benjamin Cardozo certainly believed in five for execution, 11 and allegedly favored ten for imprisonment, 12 which is a bit counterintuitive. Benjamin Franklin thought "that it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer." 13 Mario Puzo's Don Clericuzio heard about letting a hundred guilty men go free and, "struck almost dumb by the beauty of the concept . . . became an ardent patriot." 14 Denver radio talk show host Mike Rosen claims to have heard it argued "in the abstract" that it's better that 1000 guilty men go free than one innocent man be imprisoned, and comments, "Well, we get our wish." 15
Or, perhaps, it may be merely "a few," 16 "some," 17 "several," 18 "many" (and particularly more than eight), 19 "a considerable amount," 20 or even "a goodly number." 21 Not all commentators weigh acquitting the guilty against the conviction of one innocent man. A Missouri district court said 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 And in Judge Henry J. Friendly's opinion, "Most Americans would allow a considerable number of guilty persons to go free than to convict any appreciable number of innocent men." 23 It is unclear whether "considerable" is greater or less than "appreciable." 24
n Guilty Men