One Last Word on the Blackstone Principle

102 Virginia Law Review Online 34 (2016)

Harvard Public Law Working Paper No. 16-33

14 Pages Posted: 4 May 2016 Last revised: 23 Jun 2016

Daniel Epps

Washington University in St. Louis - School of Law

Date Written: May 1, 2016

Abstract

In "The Consequences of Error in Criminal Justice," I analyzed and critiqued the "Blackstone principle" — shorthand for the common intuition that a criminal justice system should strive to minimize false convictions, even at the expense of creating more false acquittals and more total errors overall. Joel Johnson's "Benefits of Error in Criminal Justice" is a thoughtful and well-crafted response to my article. In this short reply, I offer some thoughts on Johnson’s arguments, while also addressing two other recent responses by Laura Appleman and by John Bronsteen and Jonathan Masur. While I use this opportunity to clarify and defend some of my earlier claims, my goal is to help frame further conversations about the Blackstone principle while also offering some larger thoughts on criminal justice scholarship. The reply focuses on three main points: first, I address criticism of my argument about the costs and benefits of the Blackstone principle for innocent defendants. Second, I explore the implications of my critique for criminal procedure rules. Third, I discuss the relationship between the Blackstone principle, equality, and political structure in our criminal justice system.

Keywords: criminal law, criminal procedure, Blackstone, false convictions, false acquittals, equality, political structure

JEL Classification: K40

Suggested Citation

Epps, Daniel, One Last Word on the Blackstone Principle (May 1, 2016). 102 Virginia Law Review Online 34 (2016); Harvard Public Law Working Paper No. 16-33. Available at SSRN: https://ssrn.com/abstract=2774425

Daniel Epps (Contact Author)

Washington University in St. Louis - School of Law ( email )

Anheuser-Busch Hall 557
1 Brookings Drive, Campus Box 1120
St. Louis, MO 63130
United States
(314) 935-3532 (Phone)

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