So Just How Many Innocents For One Guilty Man?

It had to be something special for Eugene Volokh to stoop to flagrant nepotism.  After all, puffing a 1997 Pennsylvania Law Review article is, well, not exactly cutting edge blogging.  But what really caught my eye was that its author, some kid named Alexander, had not yet gone to law school when he wrote it.

The article, n Guilty Men146 U. Penn. L. Rev. 173, by Alexander Volokh, is one of the best law review articles I’ve ever read.  It is incredibly funny, done in the most serious tone and wonderfully satirical. 

The article deals with the roots and permutations of the old maxim (even the issue of whether it’s a maxim, adage or “an item of food, specifically a ‘chestnut’,” gets skewered in this article), how many innocent people should go free lest an innocent person be convicted.

The “n” is the mathematic variable, which Volokh follows through the ages to the present, then going around the world, state to state, and ultimately offering advice to criminals as to which state offers them their best shot.


 According to some researchers, though, the maxim is considerably older.  At least three commentators — one Hebrew prophet, one Founding Father and one appellate judge — have dated it back to the beginning of time.  Moses’ precept, from the book of Exodus, was supposedly handed down from Someone who was around “in the beginning.” 46  Benjamin Franklin claims that the maxim, with n = 100 and for suffering, “has been long and generally approved; never, that I know, controverted.” 47  According to Ninth Circuit Judge Alex Kozinski, the “popular notion” 48 that n = 10 (for conviction) is just something “we have always said.” 49  A then-future U.S. president, John Adams, was more modest and merely dated the saying (with n = “many” and for suffering) back to the beginning of laws, saying that “there never was a system of laws in the world, in which this rule did not prevail.” 50

Note the timely reference to Judge Kozinski, a Volokh family favorite.  Moreover, Volokh addresses the looming sexism question:


Whoever the innocent man is, he can also naturally be an innocent woman.  The literature, in a less self-conscious time, usually said “man,” but today usually says “person” or “defendant.”  In the early modern period, many commentators wrote of guilty and innocent “perfons,” warning that “prefumptive evidences fhould be warily preffed.” 77  What exactly a perfon is may be a fruitful fubject for further refearch.

Though, reaching the outer edge, Volokh finally informs us where the line is drawn.


Objects, such as computers 85 and states, 86 and certain categories of people, such as saints, 87 are typically not entitled to the presumption of innocence.

And he further notes that not everyone accepts the concept of “n”:


Jeremy Bentham, founder of utilitarianism, warned against the warm fuzzy feeling that comes from large values of n:


We must be on guard against those sentimental exaggerations which tend to give crime impunity, under the pretext of insuring the safety of innocence.  Public applause has been, so to speak, set up to auction.  At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fix the number ten; a third made this ten a hundred, and a fourth made it a thousand.  All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused person to be condemned, unless evidence amount to mathematical or absolute certainty.  According to this maxim, nobody ought to be punished, lest an innocent man be punished. 128

For you Lost fans, there’s one less reference to ponder.  And, as with any article challenging our blind reliance on platitudes, Volokh concludes with a final thought to ponder:


The story is told of a Chinese law professor, who was listening to a British lawyer explain that Britons were so enlightened, they believed it was better that ninety-nine guilty men go free than that one innocent man be executed.  The Chinese professor thought for a second and asked, “Better for whom?” 238  

The article is relatively short, but absolutely hysterical.  For those of you, like me, who bristle at how the law blindly accepts and adopts old maxims without giving them another thought, and how these maxims frame our thinking without the benefit of critical analysis, you will absolutely love this article.  Finally, a law review article where trees didn’t die in vain.

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