Blackstone’s Formulation and Scalia

In his work “Commentaries on the Law of England,” Sir William Blackstone proffered that the law should err in favor of the defendant, lest it wrongfully punish the innocent (1765):

All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer

In contrast, Reagan-nominated Supreme Court Justice Antonin Scalia claimed that the defendant’s only right was to a fair trial, subsequent evidence of innocence notwithstanding (2009):

This Court has never held that
the Constitution forbids the execution of a convicted defendant
who has had a full and fair trial but is later able
to convince a habeas court that he is “actually” innocent.
Quite to the contrary, we have repeatedly left that question
unresolved, while expressing considerable doubt that
any claim based on alleged “actual innocence” is constitutionally

For people of Scalia’s ilk, the satisfaction of having punished someone is its own reward. I take no joy from the death even of such demonstrably bad people as Scalia. But it is certainly better for the nation and better for the world, that one fewer medievalist jurist is around to poison modernity with opinions influenced by “The Malleus Maleficarum.”

By marc

I am a scientist interested in laser safety, modeling and simulation, and statistics. I speak some Spanish, German, and Chinese.