Abstract
When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive regimes, arguing that they evade the presumption of innocence. After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority—the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense. Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted.
Similar content being viewed by others
Notes
I am among those theorists. See Ferzan (2011b).
Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).
Ashworth & Zedner (2010, p. 87):
Yet if the criminal law is conceived not only in substantive terms, as corresponding to particular principles of responsibility and liability for wrongdoing, but also … in procedural terms, as pertaining to and invoking a particular set of procedural practices and, most importantly, protections, it can be argued that recent government initiatives resort to criminal law too little as well as too much.
Control orders were replaced with “terrorism prevention and investigation measures” (TPIMs). In substance, these measures remain largely the same. See Ryder (2011).
See, e.g., SSHD v. JJ (and others), [2007] 3 W.L.R. 642; SSHD v. AF, [2009] 3 W.L.R. 74 (2009).
Ashworth (2006, p. 63).
Id. (p. 90).
See Bassiouni (1993, p. 266 n. 142 & 143)(finding five international conventions and sixty-seven constitutions with the PoI); Stuckenberg (this issue) (“there seems to be no legal order left which openly rejects the maxim”).
European Convention on Human Rights (ECHR) § 6(2).
Coffin v. US, 156 U.S. 432 (1895).
Stuntz (2001).
I borrow the term “preventive justice” from Ashworth and Zedner. See http://www.law.ox.ac.uk/projects/PreventiveJustice. (Accessed: 10/28/13).
Ashworth and Zedner (2012) (“The development of appropriate restraining principles and of procedural protections in respect of coercive civil preventive measures is, therefore, no less pressing than in respect of the criminal law itself.”).
Notably, Ashworth (and Zedner) agree that the criminal law ought not to be distorted in the name of procedure. See id.
Ferzan (2011a).
See Nozick (1974, pp. 34-35)(offering the original formulation of this problem). For ease of exposition, I have omitted Innocent Aggressors, whom I would group with Innocent Threats.
Ferzan (2012).
Id.
Id.
See id.
Quong (2009).
I owe this phrase and objection to Sandra Marshall.
Prevention of Terrorism Act of 2005 [hereinafter “PTA”].
Ryder (2011).
PTA §2.
PTA §1(4).
See also Ohana (2006, p. 26).
Ferzan (draft).
441 U.S. 786 (1979).
481 U.S. 739 (1987).
425 US 501 (1976).
[1995] 20 EHRR 557, [1995] ECHR 15175/89.
[2007] ECHR 30810/03.
Laudan (2006, p. 91).
For a cautionary note against an expansive reading of the presumption, see Schwikkard (1998)ing (1) by conjoining other rights with the presumption, these rights become vulnerable when the presumption itself is inapplicable and (2) different policy justifications lead to different conclusions about when rights may be infringed and the normative force of the presumption will be undermined if it is allowed to be overridden frequently).
Kitai-Sangero (2009, p. 908).
Campbell (2013).
See, e.g., Duff (2013) (offering an account that reconciles the PoI at trial, pretrial detention, and police investigative practices).
Laudan (2006, p. 12).
Although the “no evidence” presumption is not a presumption of innocence, Rinat Kitai-Sangero argues in favor of the PoI because of the psychological effect it will have; she claims that innocence prevents alienation of the accused from the state and it also provides a stronger psychological barrier to improper investigative methods and unnecessary pretrial detention. Kitai (2002, pp. 275, 278, 280). Note, no proof is not equivalent to even odds. See Friedman (2000).
Laufer (1995).
Cf. Lippke (2013).
Cf. Stuckenberg (this issue).
Id.
Salabiaku v. France (1991) 13 E.H.R.R. 379.
Laudan (2006, pp. 101–103).
Id. p. 106.
Salabiaku v. France, (1988) 13 E.H.R.R. 379.
Sheldrake v. DPP, [2004] UKHL 43; Stumer (2010, p. 26).
Cf. Stuckenberg (this issue).
Baradaran (2011).
See also Duff (2013).
Stuckenberg (this issue) (presumption protects against anticipating the outcome of the criminal trial, circumventing the outcome, and undermining the outcome).
See Kitai (2002, p. 269) (discussing how some scholars claim that the presumption raises a logical contraction because if “the innocence of the person is assumed…it is impossible to explain logically why an investigation is being conducted and charges filed without reaching an absurd conclusion that all accused persons are prosecuted by law enforcement agencies without basis”).
Laudan (2006, pp. 93–94).
See Stuckenberg (this issue).
Ashworth (2008).
Kitai-Sangero (2009).
Campbell (2013).
Tadros and Tierney (2004). Although I have tried to remain agnostic about the use of the PoI, this usage strikes me as too broad. See Ashworth (2006, pp. 77, 78) (limits on construction of criminal offenses come from a different fundamental principle); Duff (2012) (arguing for a formal reading of the PoI and a distinct principle for criminalization); Roberts (2005, p. 154)(“On my account, substance and procedure are independent, incommensurable dimensions of penal law that cannot be reduced to interchangeable tokens and traded like currency”). Moreover, a properly tempered usage would appeal to the political morality of which the PoI is a part. For an excellent example, see Tomlin (2012).
Campbell (2013).
Woolmington v. DPP, [1935] AC 462, 481.
Allen v. Illinois, 478 U.S. 364, 384 (1986) (Stevens, J. dissenting).
This formulation of what is otherwise called an “autonomy” or “free will” objection is due to Patrick Tomlin’s insightful interjection during the Minnesota preventive justice conference.
But see Ferzan (2011a).
Stuckenberg (this issue).
Id.
Campbell (2013).
Cf. Kansas v. Hendricks, 521 U.S. 346 (1997); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963).
See Campbell (2013) (suggesting this remedy is sufficient with respect to ASBO’s).
Leipold (2000).
Laudan (2006, p. 68).
Stein (2005, p. 175).
Id.
Id. p. 177; see also Stumer (2010, p. 21).
Tomlin (2012).
One might think that BRD is over determined by a number of factors. Ashworth includes the citizen/state relationship, the imbalance of resources, the fallibility of the system, and the official censure as all justifying BRD. Ashworth (2006, p. 75).
Tomlin (2012).
I thank Liz Campbell for pressing me on this point.
Cf. Addington v. Texas, 441 U.S. 418 (1979).
Laudan (2006).
Thanks to Antony Duff for continually pressing me on this point every chance he got.
See Waldron (2012).
References
Alexander, L. & Ferzan, K.K. (2012). Danger: the ethics of preemptive action. Ohio State Journal of Criminal Law, 9, 637–667.
Ashworth, A. (2011). The unfairness of risk-based possession offenses, Criminal Law and Philosophy, 5, 237–257.
Ashworth, A. (2008). Self-incrimination in European human rights law—a pregnant pragmatism? Cardozo Law Review, 30, 751–774.
Ashworth, A. (2006). Four threats to the presumption of innocence, South African Law Journal, 123, 63–97.
Ashworth, A. & Zedner, L. (2012). Prevention and criminalization: justification and limits, New Criminal Law Review, 15, 542–571.
Ashworth, A. & Zedner, L. (2010). Preventive Orders: a problem of undercriminalization? In Duff, R.A. et al. (Eds.), The boundaries of the criminal law, Oxford and New York: Oxford University Press.
Baradaran, S. (2011). Restoring the presumption of innocence, Ohio State Law Journal, 72, 723–776.
Bassiouni, M.C. (1993). Human rights in the context of criminal justice: identifying international procedural protections and equivalent protections in national constitutions, Duke Journal of Comparative and International Law, 3, 235–297.
Campbell, L. (2013). Criminal labels, the European Convention on Human Rights and the presumption of innocence. Modern Law Review, 74, 681–707.
Dressler, J. (5th ed. 2009). Understanding criminal law. Newark: LexisNexis.
Dripps, D. A. (1987). The constitutional status of the reasonable doubt rule, California Law Review, 75, 1665–1718.
Dubber, M. (2001). Policing possession: the war on crime and the end of criminal law, The Journal of Criminal Law & Criminology, 91, 829–996.
Duff, R.A. (2012). Presuming innocence. In Roberts, J. & Zedner, L. (Eds.) Principles and values in criminal law and criminal justice: essays in honour of Andrew Ashworth. Oxford and New York: Oxford University Press.
Duff, R.A. (2013). Pre-trial detention and the presumption of innocence. In Ashworth, A.J. et al. (Eds.) Preventive justice. Oxford and New York: Oxford University Press.
Ferzan, K.K. (draft). Preventive justice and the civil/criminal divide.
Ferzan, K.K. (2011a). Beyond crime and commitment: justifying liberty deprivations of the dangerous and responsible, Minnesota Law Review, 9, 141–193.
Ferzan, K.K. (2011b). Inchoate crimes and the prevention/punishment divide, San Diego Law Review, 48, 1273–1298.
Ferzan, K.K. (2012). Culpable aggression: the basis for moral liability to defensive killing, Ohio State Journal of Criminal Law, 9, 669–698.
Friedman, R.D. (2000). A presumption of innocence, not of even odds, Stanford Law Review, 52, 873–888.
Frowe, H. (2010). A practical account of self-defense, Law and Philosophy, 29, 245–272.
Husak, D. (2004). The criminal law as last resort, Oxford Journal of Legal Studies, 24, 207–235.
Husak, D. (2013). Social engineering as an infringement of the presumption of innocence: the case of corporate criminality. doi:10.1007/s11572-013-9232-y.
Jareborg, N. (2004). Criminalization as last resort (ultima ratio), Ohio State Journal of Criminal Law, 2, 521–534.
Jeffries, Jr., J.C. & Stephan, III, P.B. (1979). Defenses, presumptions, and burden of proof in the criminal law, Yale Law Journal, 88, 1325–1407.
Kitai, R. (2002). Presuming innocence, Oklahoma Law Review,55, 257–296.
Kitai-Sangero, R. (2009). The limits of preventive detention, McGeorge Law Review, 40, 903–934.
Laudan, L. (2006). Truth, error, and criminal Law: an essay in legal epistemology. New York and Cambridge: Cambridge University Press.
Laufer, W.S. (1995). The rhetoric of innocence, Washington Law Review, 70, 329–422.
Leipold, A.D. (2000). The problem of the innocent, acquitted defendant. Northwestern University Law Review, 94, 1297–1356.
Lippke, R.L. (2013). The prosecutor and the presumption of innocence. doi:10.1007/s11572-013-9208-y.
McMahan, J. (2009). Killing in war. Oxford and New York: Clarendon Oxford University Press.
Nozick, R. (1974). Anarchy, state and utopia. Basic Books.
Ohana, D. (2006). Responding to acts preparatory to the commission of a crime: criminalization or prevention?, Criminal Journal Ethics, 25, 23–39.
Quong, J. (2009). Killing in self-defense, Ethics, 119, 507–537.
Roberts, P. (2005). Strict liability and the presumption of innocence: an expose of functionalist assumptions. In Simester, A.P. (Ed.), Appraising strict liability. New York and Oxford: Oxford University Press.
Ryder, M. (January 28, 2011). Control orders have been rebranded. Big problems remain, www.guardian.co.uk.
Schwikkard, P. J. (1998). The presumption of innocence: what Is it?, South African Journal Criminal Journal, 11, 388–408.
Slobogin, C. (2006). Minding justice: laws that deprive people with mental disability of life and liberty. Cambridge, Mass: Harvard University Press.
Stein, A. (2005). Foundations of evidence law. Oxford and New York: Oxford University Press.
Stuckenberg, C.-F. (2013). Who is presumed innocent of what by whom? Criminal Law and Philosophy. doi:10.1007/s11572-013-9230-0.
Stumer, A. (2010). The presumption of innocence: evidential and human rights perspectives. Oxford and Portland: Hart.
Stuntz, W.J. (2001). The pathological politics of the criminal law, Michigan Law Review, 100, 505-600.
Sundby, S.E. (1989). The reasonable doubt rule and the meaning of innocence, Hastings Law Journal, 40, 457–510.
Tadros, V. (2007a). Justice and terrorism, New Criminal Law Review, 10, 658–689.
Tadros, V. (2007b). Rethinking the presumption of innocence. Criminal Law and Philosophy, 1, 193–213.
Tadros V. & Tierney, S. (2004). The presumption of innocence and the human rights act, Modern Law Review, 67, 402–434.
Trechsel, S. with Summers, S. (2006). Human rights in criminal proceedings. Oxford and New York: Oxford University Press.
Tomlin, P. (2012). Extending the golden thread? criminalisation and the presumption of innocence. Journal of Political Philosophy, 21, 44–46.
Waldron, J. (2012). Torture, terror, and trade-offs: philosophy for the White House. New York and Oxford: Oxford University Press.
Zedner, L. (2007). Preventive justice or pre-punishment? the case of control orders, Current Legal Problems, 60, 174–203.
Acknowledgments
I thank the participants at the International Conference for Law and Society (June 2012) and the University of Minnesota Law School’s Robina Institute’s Conferences on the Presumption of Innocence (May 2012) and Preventive Justice (September 2012). Special thanks are due to my commentators at all three venues: Jeff Brown, Liz Campbell, Sharon Dolovich, and Susan Rozelle. This paper was supported by NYU Law’s Center for the Administration of Criminal Law, while I was a Scholar in Residence, and I thank my research assistant, Jules Torti, for her excellent work. Rutgers-Camden Reference Librarians David Batista and Genevieve Tung also provided invaluable assistance.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Ferzan, K.K. Preventive Justice and the Presumption of Innocence. Criminal Law, Philosophy 8, 505–525 (2014). https://doi.org/10.1007/s11572-013-9275-0
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-013-9275-0