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December 23, 2012

"The Presumption of Punishment"

The title of this post is the title of this interesting-looking new piece by Shima Baradaran which is now up 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.

December 23, 2012 at 11:44 AM | Permalink


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Anyone sincere about this review, and the presumption of innocence, should support statutes allowing tort liability to the innocent defendant. I apologize in advance to Prof. Berman for the repetitiveness of this talking point. However, nothing is sincere or even meaningful with the lawyer unless backed up by money damages for the carelessness of the law enforcement official. Most of us should be left alone (an unstated right, contained in the Ninth Amendment, which desperately needs revival in a nation now run by rent seeking government officials, tighter than the KGB, headed by a President with a mentality similar to Hugo Chavez, and a kowtower to Islamic dictators).

The punishment begins with the first stop. You are now captured, an not free to leave. That is a really punitive experience, inducing fear and totally destroying your dignity. You are free to leave but the police will not say that, nor does anyone know that. You must restrain all speech because it will be used against you, and there is nothing one can say to overcome the money lust of the police thug who now has a prospect to bleed. Then they can arrest you, and put you in a cage. You must give them money. Everyone is subject to one of those stops because there is an infinite number of rules to break, and the police know them, you do not. You appreciate freedom most sitting in that cage. So far, no evidence exists of any guilt.

Then there is the uncertainty and fear of the trial itself. They can destroy the person financially, physically, mortally.

Someone has to pay for the suffering of the innocent defendant. To deter. Liability is the royal road to shrinking an entire enterprise. Because is so bad at 90% of what it does, government deserves to shrivel, through ruinous litigation, just like they are doing to every one else.

The liability should extend to acts of omission if they deviate from professional standards. The failure to issue a protection order or to exercise discretion to prosecute and the subsequent foreseeable criminal victimization should make the lawyer liabile to the victims of their carelessness.

No one has nor can explain why the bumblers running the criminal law, especially the total losers on the bench, should maintain their self dealt immunity.

So either support real tort liability, or else the hand wringing about presumed punishment is not genuine.

Posted by: Supremacy Claus | Dec 23, 2012 5:54:39 PM

loved this!

"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."

Of course in modern day amerika there is no "presumption of innocence" unless of course your a govt agent. As for a fair trial. FORGET IT!

Posted by: rodsmith | Dec 23, 2012 10:22:47 PM

I invite all law students to spend a morning in the back of a traffic court. It operates according to the Rules of Criminal Procedure, and most violations carry a potential prison sentence. The proceeding is totally rigged, and the CCE makes about $10,000 an hour. If you are a low life moneyless illegal alien, the pro-criminal judge will sue sponte dismiss the charge to avoid the expense of jail. If you are a productive male, you pay and pay. Try disputing a charge based on the faulty methodology of the police thug, you get surrounded and physically intimated, told to be quiet by the cult criminal on the bench. Hiring a defense lawyer is a waste. He will negotiate a plea offered for free by the prosecutor thug.

What you will see is unrelated to the propaganda of law school.

Posted by: Supremacy Claus | Dec 24, 2012 3:35:35 AM


Amen. You are absolutely correct

Posted by: Widow | Dec 24, 2012 8:27:36 AM

As an attorney that practices in traffic court (non criminal in my State), I have to agree with the comments above regarding the rigged system and the lack of concern on the part of judges for even appearing to be fair and impartial. Unfortunately, I see many of the same tendencies in criminal courts also. The slant towards the State seems palpable. Many "decisions" are on autopilot, with no real discretion excercised by the court. That is not due process, it is processed cheese, past the expiration date.

Posted by: KRG | Dec 24, 2012 12:31:45 PM

KRG: I may be wrong about traffic law defense lawyers. Do you ever do more than the defendant can do alone, for free, i.e. accept a plea offer from the prosecutor, to avoid a trial? The defense lawyers in a New Jersey traffic court I saw were "potted plants," as afar as I could tell. But I want to be fair, and would like to learn more.

When I saw the treatment of a person asking for a dismissal, I offered to file a complaint with the Judicial review board in my own name. The guy said, to not do that because he still has to drive these roads. The judge told him to be quiet, and he was surrounded by 4 body building enthusiast police, hands on taser weapon.

Memo to law school deans: traffic law courses (none available in any school). These affect the biggest fraction of the public, after tax law.

Posted by: Supremacy Claus | Dec 24, 2012 1:26:49 PM

"... slant towards the State seems palpable."

That is the second best theory and predictor of judicial decisions, up to the Supreme Court. They will favor government in the vast majority of cases. In their defense, they are upholding the results of elections. They are also avoiding getting in the papers for legislating from the bench. In criticism, they are ruling in favor of the entity writing their pay check, and have an irremediable conflict of economic interest.

Posted by: Supremacy Claus | Dec 24, 2012 1:43:29 PM

Well for all you lawyers watching this criminal activity going on in courtrooms around the nation. Might be past time to stand up and announce you have no intention to coopoerate with a criminal enterprise and will not be representing anyone in front of them.

Then walk out!

If every lawyer did that. They would have to get off their asses and fix the problem.

Of course that would be right after a new court system was build since the current one would go BOOM!

Posted by: rodsmith | Dec 29, 2012 11:47:31 PM

I really appreciate this post. I’ve been looking all over for this! Thank goodness I found it on Bing. You have made my day! Thanks again!

Posted by: Engage | Jan 2, 2013 5:28:18 AM

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