Abstract
At criminal trial, we demand that those accused of criminal wrongdoing be presumed innocent until proven guilty beyond any reasonable doubt. What are the moral and/or political grounds of this demand? One popular and natural answer to this question focuses on the moral badness or wrongness of convicting and punishing innocent persons, which I call the direct moral grounding. In this essay, I suggest that this direct moral grounding, if accepted, may well have important ramifications for other areas of the criminal justice process, and in particular those parts in which we (through our legislatures and judges) decide how much punishment to distribute to guilty persons. If, as the direct moral grounding suggests, we should prefer under-punishment to over-punishment under conditions of uncertainty, due to the moral seriousness of errors which inappropriately punish persons, then we should also prefer erring on the side of under-punishment when considering how much to punish those who may justly be punished. Some objections to this line of thinking are considered.
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Notes
One of the ways in which it is oversimplified is that it does not afford prosecutors the central role that they in fact play in deciding who will be charged, and with what. A fully-developed account of what the direct moral grounding of the presumption of innocence tells us about the entire criminal justice system would have to recognise and incorporate this central role that prosecutors play. I am grateful to Doug Husak for pointing this out to me.
I assume here, and throughout, that in criminalising the conduct, the legislature judges that that conduct is, at least sometimes, worthy of punishment, and that this is what makes the conduct appropriate for regulation by, and what is distinctive about, the criminal law.
This range may extend downward to ‘no punishment’ but must (as per note 2) extend upward to ‘some punishment’.
It should be noted that I have used the justifications offered by Tadros and Robinson in print. After conversation with both, at the event for which this paper was originally written, I am not sure that either would currently endorse the direct moral grounding. But that they both reached for it, or something very close to it, in earlier work, is instructive, I think, both of how natural a way it is to understand the PIP, and in showing how both sides of the substantive/procedural divide have found it a natural way to think about the PIP.
A good illustration of the distinction between these two types of principle (objective and subjective) can be found in the following two utilitarian principles. Objective Principle: The best state of affairs is one in which happiness is maximised. Subjective Principle: Act so as to maximise expected happiness.
Although many who adhere to DMG1 will be retributivists, I have avoided the language of desert here. That is because such language suggests that it is not only (objectively) permissible to punish the guilty, but that it is good to do so. However, others may support DMG1 without endorsing this controversial retributivist belief. For example, those who adhere to ‘multi-level’ justifications of punishment, or those who see the guilty as liable to punishment, but not deserving of it, can support DMG1 without being through and through retributivists. Thus, ‘appropriate’ here acts as a placeholder for a variety of justificatory relationships between guilt and punishment, one of which is desert. For examples of such positions, see: Hart 1959–1960; Rawls 2001; Tadros 2011.
There are two, slightly differing, routes that one may travel from DMG1 to DMG2: in one route, the importance of setting the innocent free outweighs the importance of convicting the guilty; in the other, the importance of setting the innocent free overrides the importance of convicting the guilty. Blackstone appears to offer the outweighing approach, whilst someone like Laurence Tribe (1970) offers the overriding approach. See Tomlin (forthcoming), section III for further discussion.
Or, at least, punishing a person too much in such a way that will wrong the person. I add this qualification since some theories of punishment may have a plurality of conditions on permissible punishment, only some of which are relevant here, as only some may involve wronging the person. As an illustration, Victor Tadros (to whom I am grateful for making this point to me) has a theory of punishment in which punishment is only permissible when: (a) the person is liable to punishment; (b) the punishment is necessary to avert some future harm; and (c) it is proportionate. Arguably, on such a view, if a person is liable to punishment and the punishment does not exceed some maximum penalty appropriate to that sort of wrongdoing, we would not, in giving the person a punishment which turned out to be non-necessary (but which we did not know was non-necessary), wrong the person, even if doing so means that we act (objectively, and all-things-considered) impermissibly. That is, whilst we would have given too much punishment, we would not have given too much punishment in the way that animates the direct moral grounding of the PIP. Whether any given element of a theory of permissible punishment involves the risk of wronging the accused or simply acting impermissibly will be a matter for each individual theory of punishment. For Tadros’ theory, see: Tadros 2011, esp. Part IV.
The reasoning goes that the direct moral grounding focuses our attention on the intrinsic moral badness or wrongness of inappropriate punishment. And since it is unjust punishment that ultimately worries us, then we ought to be equally worried about the differing routes by which it may come to us, including unjust criminalisation. Therefore the direct moral grounding seems to suggest that we should only criminalise when we are sure beyond reasonable doubt that the conduct is justly criminalisable. The argument for this conclusion is based on an equivalence thesis:
Equivalence Thesis 1 (ET1): It can be as bad or worse to punish someone for something that they should not, in fact, be punished for, as it is to punish someone for something that they did not, in fact, do. Both are ultimately the same kind of error.
Or, at least, will ordinarily receive some punishment. I discuss below the fact that conviction does not always lead to punishment.
For a summary of the cases involving Shonubi and discussion of some of the normative issues involved, see Colyvan et al. 2001.
In a series of decisions, the US Supreme Court has ruled that, in certain circumstances, allowing conduct to slip in the back door at a lower standard at the sentencing stage is unconstitutional. See: Apprendi v. New Jersey, 530 US 466 (2000); Ring v. Arizona, 536 US 584 (2002); Blakely v. Washington, 542 US 296 (2004); United States v. Booker, 543 US 220 (2005). The important principle, established in Apprendi, is that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” However, the Apprendi principle differs from the position explored here, and the reasoning offered in support of it, in two crucial respects. Firstly, the strict epistemic standard of beyond reasonable doubt must only be met when the judge seeks to impose a sentence beyond the standard range, and not when the judge applies aggravating factors within the standard range [see Williams v. New York 337 US 241 (1949)]. As Williams shows, within the standard range, or in an indeterminate sentencing regime, judges are permitted to hand down whatever sentence they choose, and the facts on which they base their decisions need not be shown beyond a reasonable doubt. Indeed, as Justice Breyer notes, dissenting in Blakely, under such systems, “the judge could vary the sentence greatly based upon his findings about how the defendant had committed the crime—findings that might not have been made by a ‘preponderance of the evidence’ much less ‘beyond a reasonable doubt.’” As was stated in McMillan v. Pennsylvania 477 US 79 (1986), “Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all.” Secondly, the Apprendi principle states both that facts increasing sentences beyond the standard range must be established beyond reasonable doubt and that it must be a jury who decides whether the facts have been so established. Importantly, the Supreme Court’s stance is more focused on the jury being the appropriate decision-maker than on the appropriate decision standard (which is all my argument here focuses on). As the Court’s decision in Blakely (written by Justice Scalia) states, “Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial.”
For a provocative utilitarian argument along these lines, see Laudan 2011.
I am grateful to Lucia Zedner and Mike Redmayne for discussion here.
This would avoid the Nina counter-example, since the question asked at trial would be ‘should we censure Nina for this crime?’ and so she should be equally protected against inappropriate censure at each trial.
For an argument against this stance, see C.H. Wellman’s example of Nazi war criminals in Wellman 2012, 388.
I am grateful to Doug Husak for encouraging me to address this question.
See, further, Alexander 1983.
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Acknowledgments
My interest in the presumption of innocence, and its scope and grounds, stems from my involvement with the AHRC-funded Preventive Justice project (ID: AH/H015655/1), which I worked on at the University of Oxford with Andrew Ashworth and Lucia Zedner. I am grateful to the AHRC for funding the project, and to Andrew and Lucia for help, encouragement, support and discussion. This paper follows on from my previous paper ‘Extending the Golden Thread?’, and so I am (again) grateful to all those to whom I was grateful in that paper. The present paper has further benefitted from discussion at the workshop in Aberdeen for which it was written and I would like to thank all the participants for helpful questions and comments, and Antony Duff, Liz Campbell and James Chalmers for organising the event. I am especially grateful to Duff for helpful written comments.
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Tomlin, P. Could the Presumption of Innocence Protect the Guilty?. Criminal Law, Philosophy 8, 431–447 (2014). https://doi.org/10.1007/s11572-012-9193-6
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DOI: https://doi.org/10.1007/s11572-012-9193-6