The Temptations of Scapegoating

26 Pages Posted: 25 Sep 2018 Last revised: 18 Apr 2019

Date Written: August 1, 2018

Abstract

We say “it is better that ten guilty persons escape, than one innocent suffer.” Evidence of the law’s 10:1 preference for false acquittals, however, is weak. In actuality, the “twofold aim … that guilt shall not escape or innocence suffer” weights the avoidance of false convictions and false acquittals equally. Likewise, the Supreme Court’s claim that “the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence” is, it turns out, porous. The truth sought at trial need be only true enough—verdicts are legally true if fairly arrived at. While the risk of false convictions is considered acceptable, the materialization of that risk is by all accounts a non-trivial event.

Scapegoating is such an event. Scapegoats overpay for their part (if part there be) in harm-causing events, without which there can be false accusations, but no scapegoats. Here I identify four types of scapegoating, which I designate as 1) frame-ups, 2) axe-grindings, 3) patsies, and 4) reckonings. None track the original Levitical sense of the term, whereby Aaron transferred the collective guilt of the people to a goat that he banishes with their sins. That Levitical sense still has point: for example, Dr. Larry Nassar recently took a sentence of 40 to 175 years so that, we might say, the structures that enabled his sexual abuse of some 200 girls can go unabated.

Yet few of the nearly 20,000 Westlaw mentions of scapegoating rely on this strict sense of the term. Instead, most point to more extended senses. Here I attempt the first taxonomy of scapegoating in senses of the term that have been stretched over time, but stretched neither unnaturally nor all out of shape. My intention is to help us reach discovery or agreement as to when and why scapegoating can pose a nontrivial temptation to those sitting in judgment, thereby threatening to undermine principles of equality in punishment: principles of treating humans as ends in themselves.

Keywords: criminal law, punishment

JEL Classification: K10, K14, K42

Suggested Citation

Yeager, Daniel B., The Temptations of Scapegoating (August 1, 2018). American Criminal Law Review, Forthcoming, California Western School of Law Research Paper No. 18-14, Available at SSRN: https://ssrn.com/abstract=3252631

Daniel B. Yeager (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States
619-525-1456 (Phone)
619-696-9999 (Fax)

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