Pre-Trial Detention and the Presumption of Innocence

Abstract

Pre-trial detention, and other restrictions that may be placed on those awaiting trial, seem to be inconsistent with a robust understanding of the Presumption of Innocence, since they treat the unconvicted defendant as if he is likely (more likely than other citizens) to fail to appear for trial, to try to pervert the course of justice, or to commit other offenses. In this paper I argue that certain kinds of liberty-limiting requirement can legitimately be placed on those awaiting trial, as flowing from the duties of reassurance that citizens owe each other. Pre-trial detention, however, cannot be justified in those terms, and is (except in a very few types of case) inconsistent with the Presumption of Innocence and with proper respect for the defendant’s civic status.

Keywords: Presumption of innocence; bail, pre-trial detention