Punishing while Presuming Innocence : A Study on Bail Conditions and Administration of Justice Offences

(2019) 60:3 Les Cahiers de droit 873–904

32 Pages Posted: 10 Jun 2020

See all articles by Marie Manikis

Marie Manikis

McGill University - Faculty of Law

Jess De Santi

affiliation not provided to SSRN

Date Written: September 3, 2019

Abstract

This paper examines the process and outcomes of bail hearings, focusing on cases where defendants’ hearings involved administration of justice and sentencing offences. The data analyzed for this project suggests that despite the presumption of innocence and non-punitive official objectives of judicial release, the practice by law enforcement and courts at this stage of the process tends towards punitiveness. These punitive responses are illustrated by three main findings that relate to the detention of individuals accused of administration of justice or sentencing offences, the number of conditions of release breached per combination of charges, and the breached conditions of release. These processes are understood through a durkheimian lens, using Fauconnet’s work which considers the social function of punitive processes as focused on annihilating the criminal act to establish social order. As will be seen, this function is achieved through the selection of a scapegoat that is rapidly punished, rather than appropriately assigning individual liability.

Suggested Citation

Manikis, Marie and De Santi, Jess, Punishing while Presuming Innocence : A Study on Bail Conditions and Administration of Justice Offences (September 3, 2019). (2019) 60:3 Les Cahiers de droit 873–904, Available at SSRN: https://ssrn.com/abstract=3602227

Marie Manikis (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec H3A 1W9
Canada

Jess De Santi

affiliation not provided to SSRN

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