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Restoring the Presumption of Innocence by Shima Baradaran

Abstract: The most commonly repeated adage in U.S. criminal justice is the presumption of innocence: defendants are deemed innocent until proven guilty. Historically, this presumption carried important meaning both before and during trial. However, in light of state and federal changes in pretrial practice, as well as Supreme Court precedent restricting the presumption’s application to trial, the presumption of innocence no longer protects defendants before trial. These limitations on the presumption are fundamentally inconsistent with its constitutional roots. The results of the presumption’s diminution are also troubling as the number of defendants held pretrial has steadily increased such that the majority of people in our nation’s jails have not been convicted of any crime. Few contemporary legal scholars have focused on the dwindling pretrial presumption, let alone its constitutional implications. This article fills the void by examining historically, for the first time, how the Due Process Clause provides the constitutional basis for the presumption of innocence and how that presumption secures at least one pretrial right: the right to release on bail, absent serious flight risk. This article introduces three principles to ensure that the pretrial presumption of innocence remains true to its constitutional roots. Returning the presumption to its constitutional foundation and ensuring its application in ways that are consistent with that foundation will result in less confusion in the courts and a more consistent approach to pretrial decisions.