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Restoring the Presumption of Innocence

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Restoring the Presumption of Innocence Restoring the Presumption of Innocence SHiMA BARADARAN* The most commonly repeated adage in U.S. criminaljustice is the presumption of innocence: defendants are deemed innocent until proven guilty. Historically, this presumption carried important meaning both before and during trial. However, in light of state andfederal changes in pretrialpractice, as well as Supreme Courtprecedent restrictingthe presumption'sapplication to trial,the presumption of innocence no longer protects defendants before trial. These limitations on the presumption are fundamentally inconsistent with its constitutional roots. The results of the presumption's diminution are also troubling as the number of defendants held pretrialhas steadily increasedsuch that the majority ofpeople in our nation'sjails have not been convicted of any crime. Few contemporary legal scholars have focused on the dwindling pretrialpresumption, let alone its constitutionalimplications. This Article fills the void by examining, historically, how the Due Process Clause provides the constitutional basis for the presumption of innocence and how that presumption secures at least one pretrial right: the right to release on bail, absent serious flight risk. This Article introduces three principles to ensure that the pretrial presumption of innocence remains true to its constitutional roots. Returning the presumption to its constitutionalfoundation and ensuring its application in ways that are consistent with that foundation will result in less confusion in the courts and a more consistent approach to pretrial decisions. TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 724 II. HISTORICAL UNDERSTANDING OF THE PRESUMPTION OF INNOCENCE... 727 A. Bail Was Presumedfor NoncapitalCases and Guilt Was Not D etermined Pretrial................................................................ 728 B. Purpose of Bail Was Return to Court, Not Preventing A dditional Crimes ................................................................... 731 C. Accused Individuals Were Not Incarceratedor Punished...... 734 D. Due Process Focused on Proving Legal Guilt at Trial .......... 736 III. CHANGES TO THE PRESUMPTION OF INNOCENCE AND DUE PROCESS... 738 A. 1966 Act Allows Weighing of Evidence .................................. 739 * Associate Professor of Law, Brigham Young University Law School. I would like to thank Fred Gedicks, Jim Rasband, Brooke Boyer, Kif Augustine-Adams, Kimberly Hoist, Lisa Sun, Dan Markel, Collin Miller, Max Minzner, David Moore, Meghan Ryan, Sandra Guerra Thompson, Brett Scharffs, Gordon Smith, Carolina Nunez, and Mehrsa Baradaran for helpful comments on earlier drafts. I would also like to thank the participants of the AALS JRCS Forum, Arizona State University Workshop, and the Annual Law and Society Conference for their helpful feedback. I would like to thank Tyler Albrechtsen, Samantha Hunter, Tyler LaMarr, Julie Slater, Rebecca Skabelund, and Bryan Stoddard for their excellent research assistance. OHIO STATE LAW JOURNAL [Vol. 72:4 B. 1984 Act Restricts PretrialLiberty Basedon Community Safety... 746 C. New Bail StandardsAllow PretrialDecisions About Guilt.... 752 lV. DUE PROCESS CHANGES LIMIT PRETRIAL RIGHTS ......................... 754 A. Divorce of Due Process and the Presumptionof Innocence .... 755 B. Improper Understandingof Due Process Allows for Violations.. 758 1. Weighing of Evidence Pretrial.......................................... 760 2. Interference with CriminalProcess .................................. 762 3. PredictingDanger to the Community ............................... 763 V. PRINCIPLES OF PRETRIAL DUE PROCESS ........................................ 766 A. PretrialRestraints ofLiberty .................................................. 768 B. Pretrial Weighing ofEvidence and Predicting Crime............ 770 C. PretrialFocus on Legal Innocence ........................................ 772 V I. C ONCLU SION .................................................................................. 776 I. INTRODUCTION The presumption of innocence is one of the most familiar maxims in criminal law.' Historically, the presumption protected defendants from the time of charge to trial.2 Grounded in the Due Process Clause, the presumption prohibited judges from predicting whether defendants were guilty. Preventing judges from deciding defendants' guilt pretrial ensured that defendants would remain at liberty before trial. At trial, the presumption solely applied to require prosecutors to prove guilt beyond a reasonable doubt.3 Despite the historical import of the presumption of innocence, changes in federal and state statutes have increased the opportunity for judges to predict I Coffin v. United States, 156 U.S. 432, 453 (1895); see also 1 CORPUS IURIS CIVILIS § 22.2.3, at 325 (Theodorus Mommsen et al. eds., 16th ed. 1954) [hereinafter CORPuS] ("The burden of proof rests on who asserts, not on who denies."); James Bradley Thayer, The Presumption of Innocence in Criminal Cases, 6 YALE L.J. 185, 188-89 (1897). 2 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *300 ("Upon the whole, if the offence be not bailable, or the party cannot find bail, he is to be committed to the county gaol by the mittimus of the justice ... ; there to abide till delivered by due course of law. But this imprisonment, as has been said, is only for safe custody, and not for punishment: therefore, in this dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity: and neither be loaded with needless fetters, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only[.]" (citations omitted)); 5 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2511, at 504 (2d ed. 1923) (the presumption of innocence "hovers over the prisoner as a guardian angel" from the moment of indictment until the verdict is determined); see, e.g., People v. Riley, 33 N.E.2d 872, 875 (I11.1941) ("Any person indicted stands before the bar of justice clothed with a presumption of innocence and, as such, is tenderly regarded by the law. Every safeguard is thrown about him. The requirements of proof are many, and all moral, together with many technical, rules stand between him and any possible punishment."). 3 In re Winship, 397 U.S. 358, 361-63 (1970). 2011] RESTORING PRESUMPTION OF INNOCENCE guilt before trial. Furthermore, the Supreme Court has said that the presumption of innocence solely requires the prosecutor to show proof beyond a reasonable doubt.4 The result is that the presumption of innocence now applies only at trial. The practical results of the presumption's diminution are apparent and troubling. 5 The number of defendants held pretrial has steadily increased such that the majority of people in our nation's jails have not been convicted of any crime. 6 In the last fourteen years, the United States has gone from releasing 62% of defendants to only 40%,7 without much complaint, discussion, or even acknowledgement by legal scholars. 8 While several legal scholars commented on bail and detention during the 1970s and 1980s, 9 few contemporary legal scholars have analyzed the results of the changes in pretrial release standards and loss of the presumption of innocence.10 And while some scholars have grieved the loss of the presumption 4 Bell v. Wolfish, 441 U.S. 520, 582 n.11 (1979). 5 HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 160 (1968). 6 of the individuals in local jails, 62% have not been convicted of a crime and are being detained pretrial. See U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, JAIL INMATES AT MIDYEAR 2007, at 5 (2008), available at http://bjs.ojp.usdoj.gov/content/pub/ pdf/jim07.pdf. 7See U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, COMPENDIUM OF FEDERAL JUSTICE STATISTICS, 2004, at 1 (2006), available at http://bjs.ojp.usdoj.gov/content/ pub/pdf/cfjs04.pdf (describing federal release statistics as an example). 8 See, e.g., U.S. DEP'T OF JUSTICE, DETENTION NEEDS ASSESSMENT AND BASELINE REPORT: A COMPENDIUM OF FEDERAL DETENTION STATISTICS 3-4 (2001), available at http://www.justice.gov/ofdt/compendium final.pdf. 9See Sam J. Erwin, Jr., Foreword: Preventative Detention-A Step Backward for Criminal Justice, 6 HARV. C.R.-C.L. L. REV. 291 (1971); John Goldkamp, Danger and Detention: A Second Generation of Bail Reform, 76 J. CRIM. L. & CRIMINOLOGY 1, 1-2 (1985); Gerald H. Goldstein, PretrialImprisonment, 54 TEX. L. REV. 1169, 1170-71 (1976); Jeff Thaler, Punishing the Innocent: The Need for Due Process and the Presumption of Innocence Prior to Trial, 1978 Wis. L. REV. 441, 442 (arguing that a probable guilt model should apply pretrial rather than probable cause); Laurence H. Tribe, An Ounce of Detention: Preventive Justice in the World ofJohn Mitchell, 56 VA. L. REv. 371 (1970). For a recent discussion of the Bail Reform Act of 1984 and the Excessive Bail Clause, see Samuel Wiseman, Discrimination Coercion, and the Bail Reform Act of 1984: The Loss of the Core ConstitutionalProtections of the Excessive Bail Clause, 36 FORDHAM URB. L.J. 121, 122-23 (2009). 10 But see William S. Laufer, The Rhetoric of Innocence, 70 WASH. L. REv. 329, 404 (1995) (discussing the Supreme Court's connection of the presumption of innocence to the Fourteenth Amendment Due Process Clause in Estelle v. Williams, 425 U.S. 501 (1976) and Taylor v. Kentucky, 436 U.S. 478 (1978)); Joseph L. Lester, Presumed Innocent, Feared Dangerous: The Eighth
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