PRESUMED PUNISHABLE: SENTENCING ON THE STREETS AND THE NEED TO PROTECT BLACK LIVES THROUGH A REINVIGORATION OF THE PRESUMPTION OF INNOCENCE

33 Pages Posted: 18 Nov 2021

Date Written: October 2021

Abstract

Following the police killing of George Floyd in the summer of 2020, there has been a renewed focus on protecting Black people in America from excessive police violence. While the images of George Floyd were shocking to the public, that level of extreme violence and disregard for life has been a common aspect of the lives of Black Americans throughout history. In America, Black people are “presumed punishable.” Due to the historical and persistent biases against Black people, Black people find themselves subject to false assumptions about their criminality and presumptions that they are deserving of punishment. This stands in stark contrast to the presumption of innocence that has been enshrined into our American understandings of fairness in the criminal justice system. Though scholars have posited a host of suggested policing reforms in the wake of the renewed Black Lives Matter movement, this Article argues that none of those reforms will lead to sustained improvement in the lives of Black Americans if they are not accompanied by the acknowledgement of the daily biases faced by Black people and the employment of new understandings of basic constitutional protections to address the effects of those biases. Through this author's “presumed punishable” concept, this Article offers a reinvigoration of the
presumption of innocence as a due process requirement as a possible vehicle for protecting Black lives.

Keywords: sentencing; police; Black Live Matter

Suggested Citation

Exum, Jelani, PRESUMED PUNISHABLE: SENTENCING ON THE STREETS AND THE NEED TO PROTECT BLACK LIVES THROUGH A REINVIGORATION OF THE PRESUMPTION OF INNOCENCE (October 2021). Howard Law Journal, Vol. 60, No. 301, 2021, Available at SSRN: https://ssrn.com/abstract=3949712

Jelani Exum (Contact Author)

Detroit Mercy Law ( email )

651 East Jefferson Avenue
Detroit, MI 48226
United States
313-596-0219 (Phone)

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