Academic journal article Albany Law Review

The Mayhem of Wrongful Liberty: Documenting the Crimes of True Perpetrators in Cases of Wrongful Incarceration

Academic journal article Albany Law Review

The Mayhem of Wrongful Liberty: Documenting the Crimes of True Perpetrators in Cases of Wrongful Incarceration

Article excerpt


Writing in the Eighteenth century, English jurist William Blackstone argued that "it is better that ten guilty persons escape, than that one innocent suffer." (3) The Blackstone principle went on to become the basis for many of our criminal justice system's strict procedural rules including the beyond-a-reasonable-doubt standard required to secure a criminal conviction. (4) For many years its benefits were assumed. However, in recent years there have been renewed debates about the value of Blackstone's principle. (5) Many defenders of the principle have emphasized the harms that wrongful convictions inflict on the wrongfully convicted. (6) Debates over Blackstone would benefit from a consideration of less well-documented harms associated with wrongful liberty. Evidence of crimes of wrongful liberty thus demonstrates that the harms of wrongful conviction are greater than previously thought.

Many arguments in favor of the Blackstone principle posit that the costs associated with false convictions are much higher than those associated with false acquittals, thus encouraging us to err on the side of acquittals. (7) Ronald Dworkin has argued that false convictions constitute a unique moral harm and criticized utilitarian perspectives on Blackstone for failing to attend to this harm. (8) Similarly, Harvard Law Professor Richard Fallon has argued that false convictions are more morally disturbing than false acquittals because the former involve the violation of fundamental rights. (9) Utilitarian defenders of Blackstone focus on the balance of harms, arguing that convicting an innocent person involves more harms than falsely acquitting a guilty person. (10) In these accounts, harms of wrongful conviction include the loss of liberty, stigma, and long-term psychological harms, all echoed by the innocence movement and increasingly well-documented by scholars. (11)

The most common critique of the Blackstone principle is that the theory is "insufficiently sensitive to the cost of false acquittals." (12) Some critics highlight the damage false acquittals cause to victims of crimes, comparing the harms of criminal victimization to the harm experienced by someone wrongfully convicted. For example, in their paper titled "Deadly Dilemmas," Larry Laudan and Ronald Allen ask:

In what sense can it be worse to be wrongfully convicted of murder than
to be murdered?... We doubt many would share these apparent
implications of the position that wrongful conviction is a worse harm
than criminal victimization, at least where serious violent crimes are
concerned. (13)

Laudan and Allen go on to explain, "when balancing, one must decide to what extent he or she prefers false convictions to victimization." (14) These arguments present the risk of increased victimization as independent of the risk of increased false convictions. Under this view, victimization and acquittals are linked, but victimization and false convictions are discrete and in conflict. Similarly, many other critics of the Blackstone principle highlight its potential to minimize deterrence and create more crime victims. (15)

Another line of Blackstone critique focuses on the harms false acquittals inflict on victims of crime. Considering the Blackstone principle, R.L. Lippke argues that we must also factor into our evaluation the "additional anguish experienced by crime victims whose victimizers escape all punishment." (16) As he argues, victims and loved ones who must cope with a false acquittal experience "profound disappointment and despair." (17) In the aforementioned work by Laudan and Allen, they note that acquittals result in a "failure to satisfy victims' retributive feelings [and] lack of closure." (18)

What much of this conversation misses is that false convictions and false acquittals often have similar consequences in terms of future victimization and harms to original victims. …

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