“More weight!” Those are the famous—though perhaps apocryphal—last words of octogenarian farmer Giles Corey, who in 1692 was accused of being a witch and then pressed to death by the Commonwealth of Massachusetts when he refused to enter a plea to the charge. You might think we’d have made great progress in the ensuing 330 years when it comes to the government’s use of coercion against recalcitrant defendants, but you’d be wrong. Pressure is still the mainspring of American criminal justice—we just don’t use rocks and gravity to produce it anymore. Instead, we’ve refined our approach to make the application of pressure less bloody but still equally effective.
In this piece, I will explain how the confluence of an ancient Greek paradox and a famous common‐law maxim ravaged the Bill of Rights and destroyed the moral legitimacy of our criminal justice system in a way that should have self‐professed constitutional originalists reaching for the proverbial muskets above their mantelpieces. (Spoiler alert: They aren’t.)
But first, let’s get back to the unfortunate Giles Corey. Swept up in the hysteria of the Salem witch trials, Corey was accused of being a “dreadful wizard” who “grievously tormented” various neighbors while appearing to them as an apparition. Arrested and brought before a judge, Corey steadfastly refused to enter a plea of guilty or innocent, which both deprived the court of lawful jurisdiction to try the case and—this part is key from the government’s perspective—the ability to dispossess Corey’s heirs following his virtually inevitable conviction and execution. What to do?
It turns out Corey wasn’t the first person to pull this stunt, and the judiciary had a special procedure for defendants who stubbornly refused to submit themselves (and their estates) to the jurisdiction of the court. It was called peine forte et dure (roughly, “pain, good and hard,”), and it involved placing the defendant under a wooden plank and piling on rocks until they relented. Simple, brutal, and effective; but—disconcertingly from the government’s perspective—not infallible. Thus, Giles Corey expired without ever entering a plea and is said to have taunted his tormentors at the end by calling for “more rocks.” As for his heirs, they got his estate—not the Commonwealth.
So what does this have to do with our modern criminal justice system? In a word, everything. Because when it comes to dealing with obdurate defendants, we use the same basic approach that was inflicted on Giles Corey, namely, the incremental addition of pressure to elicit a desired plea. And that’s where the ancient Greek paradox and the common law maxim mentioned above enter the story. We’ll take them in reverse order.
Among the most famous aphorisms in Anglo‐American criminal law is that it is “better that ten guilty men go free than one innocent man be convicted.” (Notably, the precise number varies across time and locales, as discussed in Sasha Volokh’s thoughtful essay “n Guilty Men.”) This is referred to as “Blackstone’s ratio,” after the eponymous eighteenth century English legal scholar, and it represents a singularly momentous decision about best practices in criminal adjudication.
As with any human endeavor, mistakes will inevitably be made in the adjudication of criminal charges. Those mistakes fall into two general categories: false convictions and false acquittals. In designing an adjudicative process, one can seek to minimize false convictions while increasing the likelihood of false acquittals; one can seek to minimize false acquittals while increasing the likelihood of false convictions; or one can seek to maximize overall accuracy with no preference for avoiding one type of error over the other. The Blackstonian ratio represents a clear decision to favor false acquittals over false convictions, and the Bill of Rights is chock‐full of features reflecting that policy choice. These include the right against self‐incrimination; the right to counsel; jury unanimity; proof of guilt beyond a reasonable doubt; the bar against successive prosecutions for the same crime (“double jeopardy”); and not allowing the government to appeal an acquittal.
And that seems to have worked well enough in an era where criminal cases were rare, procedures streamlined, and recollections vivid about the misuse of criminal law to facilitate British tyranny. But as time went by and criminal dockets swelled, various system actors—including police, prosecutors, and judges—began to question whether the Blackstonian ratio was worth the social cost. “Better that ten guilty men go free” may seem a laudable sentiment in the abstract, but what if every one of them is a kidnapper or murderer? And what if the only reason the government can’t prove it is the judge‐made exclusionary rule or because the prosecution’s star witness had the misfortune of getting shot in the head on her way to court? Might there be some way for prosecutors who know—I mean really know—they’ve got the right man to rejigger the Blackstonian calculus in order to avoid turning so many violent criminals loose on society?
The answer is yes, absolutely. One has only to persuade the defendant to relinquish those protections, just as Massachusetts sought to “persuade” Giles Corey to submit himself (and his estate) to the jurisdiction of the witch‐catching Court of Oyer and Terminer. Fortunately for those seeking to induce such waivers, there’s no need to start from scratch: the techniques for eliciting things like confessions, guilty pleas, and names of accomplices have been refined with ruthless efficiency by countless regimes throughout history, and the basic approach—application of sufficient pressure to overcome the subject’s will and induce compliance—is remarkably straightforward. Indeed, the only real trick in an ostensibly rule‐of‐law nation like ours is to ensure that those responsible for preventing such abuses consistently turn a blind eye to them. And that’s where the “sorites paradox”—aka “the problem of the heap”—plays an indispensable role.
Simply stated, the sorites paradox asks this: Starting with a single grain of rice and then adding one grain at a time, when can we be said to have a “heap” of rice? Is two grains of rice a heap? Plainly not. How about three? Nope. Four? No. Five? No. A million? Well yes, obviously. So we know that a heap comes into existence somewhere between two grains of rice and a million—but where, exactly? Turns out it’s impossible to say—hence the paradox.
Now back to Giles Corey and the Blackstonian ratio. Imagine you’re a prosecutor who just knows a particular defendant is guilty—there’s not the slightest doubt in your mind that he really is a murderer, a drug lord, a warlock, or what have you. And you’re equally certain that failing to convict this horrible person would be a disaster for the community. Unfortunately, that’s a real possibility if the case goes to trial in a system that is so carefully designed to prefer false acquittals to false convictions.
One way to avoid that risk is to reason with the defendant and explain how much better it would be for society if he would waive his right to contest the charges and simply plead guilty instead. One might invite the defendant to consider how much time and money would be wasted on a pointless trial, not to mention the trauma for witnesses who would have to relive often quite horrible experiences should they be required to testify in court. The defendant might also consider that the world would be a much better place were he behind bars—as he himself should know very well, scoundrel that he is. Unfortunately, experience shows that most defendants remain selfishly unmoved by such arguments and more interested in avoiding punishment than sparing needless public expense and paying their debt to society.
But what if prosecutors were allowed to put the defendant under a board (metaphorically speaking, of course) and start piling on rocks? Not boulders, mind you, like those benighted troglodytes in Salem—but small rocks, placed on top of the defendant one at a time, like so many grains of rice. Surely one little rock could never coerce a defendant into waiving his right to a trial, right? Or two rocks, or three, or four, or…but why not dispense with the metaphor? Here’s how sorites‐style plea bargaining actually works in a nutshell:
Prosecutor to defendant: So you’re not interested in pleading guilty, huh? OK, fine—let’s see how you like pretrial detention. No? OK, let’s make the jail a COVID‐infested hellhole with unvaccinated guards, inedible food, no medical care, and violent gangs. Still no? Well, let’s throw some new charges into the mix—starting with resisting arrest, a habitual‐offender charge (that one carries a life sentence, BTW), conspiracy‐to‐conjure (sorry, Giles), and whatever your cellmate comes up with when we offer him a cooperating‐witness deal. What’s that? “More weight?” Ha ha. OK, tough guy—try this on for size. You know those tax problems your dad’s been having with the IRS? That’s a civil matter right now, but it could easily be kicked over to the Criminal Investigation Division, if you catch my drift. How do you think your father would do in prison with that heart condition of his? Now, about your sister.…
(Note for the skeptical reader: Threatening to indict—or promising not to indict—a defendant’s family members in order to exert plea leverage is a common prosecutorial tactic that has been deemed perfectly legal by multiple federal courts of appeals. See, e.g., U.S. v. Seng Chen Yong, 926 F.3d 581, 592 (CA9 2019)).
The pressure from those figurative rocks adds up fast and most defendants ultimately succumb to the government’s invitation to condemn themselves, which is why nearly all federal criminal convictions today—98.3 percent, according to the latest data from the U.S. Sentencing Commission—come from guilty pleas instead of constitutionally prescribed jury trials. (The figures are similar—but less precise—in the states.)
More than half the Bill of Rights is about criminal procedure, and most of that is about jury trials. But the Framers’ painstaking work to design a system that strongly prefers transparency, accountability, and false acquittals to false convictions goes right out the window if we allow the government to coerce criminal defendants into waiving their rights, including particularly the right to a speedy and public trial before an impartial jury. I have written elsewhere in long and short form about the coercive levers available to—and routinely employed by—prosecutors in our system to elicit guilty pleas, and it is demonstrably true that innocent people regularly plead guilty to crimes they did not commit.
That we’ve done nothing to purge coercion from the process since Massachusetts crushed Giles Corey under a board three centuries ago for refusing to enter a plea is a national disgrace. If we could ask modern judges to give one thing to the Constitution’s embrace of the Blackstonian ratio and the myriad rights necessary to effectuate it, how about this: “More weight!”
