Blackstone’s warning

December 10th, 2013 – Philadelphia Inquirer

“It is better that 10 guilty persons escape than that one innocent suffer.”

Does this statement ring true to you? If so, you are probably over 40. My students, having grown up in a post-Columbine, post-9/11, post-Virginia Tech era, hesitate when I introduce them to the 1765 formulation of British jurist William Blackstone.

It’s no surprise that today’s teens have a harder time accepting Blackstone’s statement than I did at their age. For them, danger to their own well-being and to the stability of the community seems to come primarily from lone gunmen and small groups of extremists. They are more likely to worry about unstable or lawless individuals on the loose and to view the government as their protector.

A half-century ago, high schoolers were instructed to assemble below ground as practice for a possible nuclear strike. Now they head to the basements in preparation for a terrorist attack and are told to lock themselves in their classrooms in the case of a threat from an armed intruder.

In the 1960s and ’70s, many Americans, especially younger ones, saw government as the primary menace to their personal freedom and safety. In 1970, college kids protesting government policies were shot at Kent State and Jackson State, not by deranged fellow students, but by National Guardsmen and police, respectively. This was also a period during which public support for the death penalty, carried out by the state, reached an historic low. Executions were temporarily halted between 1967 and 1977.

Some of the sections of the Bill of Rights, ratified in 1791, are already familiar to my students when we begin studying them. They know about the freedoms of speech, press, and assembly, and they are familiar with expressions such as “no double jeopardy” and “pleading the Fifth.” But it doesn’t immediately occur to them that these are also limitations on government power designed to prevent citizens from being silenced, or repeatedly dragged into court, or forced to confess, or imprisoned without trial, or denied the benefit of counsel. Blackstone’s dictum underpins our legal system. Ben Franklin referred to it approvingly.

In weakening our devotion to this principle, advances in technology have certainly played a role. A few people can do a lot more damage in our time than they could in the 18th century – witness the attacks of Sept. 11. But technology also makes it easier to extend government power. Drones – computer-guided, unmanned aircraft – have allowed the United States to kill suspected terrorists (including at least one U.S. citizen) remotely. Earlier this year, the Justice Department secretly seized electronic phone records from the Associated Press. The National Security Agency has been collecting millions of personal e-mail contact lists.

These days we don’t have much sympathy for leakers, whistle-blowers, or investigative journalists. And that’s a problem, because the executive branch is notably cavalier about our constitutional rights. There is no doubt that the threats from which the NSA hopes to protect us are real, but so is the ever-present tendency toward government overreach.

Blackstone’s observation remains at least as important now as it was in the 18th century. Whenever an innocent person suffers at the hands of the system we have created, we all do.

8 thoughts on “Blackstone’s warning

  1. Ditto… And even MORE so as we find more innocents wrongfully convicted.
    Eye Witnesses used to be believed much more than today as we study how easily we can be confused as to what we see.

    • Thanks for providing two more (over forty) data points for my informal Blackstone’s formulation survey.

  2. I very much appreciated your piece in today’s paper. Thank you for the reasoned, open way you present your views. Today’s column brought to mind a quote from Justice Learned Hand which I encountered in the book Actual Innocence by Barry Scheck, Peter Neufeld and Jim Dwyer: “Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream.” The more I read of the ways convictions can go wrong, the more that quote resonates.

  3. Article provides important perspective on how the culture swings. Present attitudes are closer to the McCarthy era or the red scare after WWI when too many people accepted government bullying and enforcements in the name of protection from the communists We seem to need huge pendulum swings in this country to feel satisfied. I hope I live long enough to see a return to sanity again on these issues.

  4. Thanks for a fine article. May your tribe increase. Your message is of especial importance these days when much of our media want to convict a person before even a trial!!

  5. It is very interesting to consider our generation’s perspective vs that of the young. I remember doing one under the desk nuclear drill in first grade and then never again. Must have been the tail end of that.
    Also, I must admit I take a long pause when trying to make sense of the NSA whistle blower and also the Wikileaks guy. They both seem pretty creepy, but may also have good reason to do what they did.

    • I think your doubts about the Snowden and Assange are shared by many. The ones who are willing to stick their necks out aren’t necessarily appealing as people but can still make very important contributions to society.

Leave a Reply

Your email address will not be published. Required fields are marked *