Friday, January 4, 2013
Shima Baradaran (Brigham Young University - J. Reuben Clark Law School) has posted The Presumption of Punishment (Criminal Law & Philosophy, Forthcoming) on SSRN. Here is the abstract:
The presumption of innocence undergirds the American criminal justice system. It is so fundamental that it is derived from the concepts of due process and the importance of a fair trial. An informed historical understanding of the interaction between the presumption of innocence and key tenets of due process can help clarify the meaning and application of the presumption of innocence in the modern day. Due Process, as developed throughout English and U.S. Colonial history leading up to the formation of the U.S. Constitution, has two important implications. First, due process provides a general guarantee of liberty against punishment or imprisonment without a fair trial. Second, due process requires that a jury, as opposed to a judge, determine the factual guilt of a defendant at trial. These two key tenets were historically fundamental to due process and should guide how the presumption of innocence impacts various stages of trial, including pretrial detention decisions and sentencing. Returning to a historical understanding of due process requires that judges not determine facts or punish individuals before a trial has occurred.