A Tragedy of Errors: Blackstone, Procedural Asymmetry, and Criminal Justice

Abstract

A response to Daniel Epps's "The Consequences of Error in Criminal Justice," critiquing the author’s suggestion to model the criminal law more "equitably." I discuss the true costs of the criminal law on our most vulnerable members of society, particularly in a world of plea bargains. I conclude that with our system of rapid guilty pleas, vast race- and class-based outcome disparities, and harsh mandatory sentencing, we should still desire some asymmetry that favors the defendant, even for those who are guilty.

Keywords: Blackstone, criminal law, criminal procedure, equity, plea bargains

JEL Classification: K14