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Could the presumption of innocence protect the guilty?
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Tomlin, Patrick (2014) Could the presumption of innocence protect the guilty? Criminal Law and Philosophy, 8 (2). pp. 431-447. doi:10.1007/s11572-012-9193-6 ISSN 1871-9791.
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Official URL: http://dx.doi.org/10.1007/s11572-012-9193-6
Abstract
At criminal trial, we demand that those accused of criminal wrongdoing be presumed innocent until proven guilty beyond any reasonable doubt. What are the moral and/or political grounds of this demand? One popular and natural answer to this question focuses on the moral badness or wrongness of convicting and punishing innocent persons, which I call the direct moral grounding. In this essay, I suggest that this direct moral grounding, if accepted, may well have important ramifications for other areas of the criminal justice process, and in particular those parts in which we (through our legislatures and judges) decide how much punishment to distribute to guilty persons. If, as the direct moral grounding suggests, we should prefer under-punishment to over-punishment under conditions of uncertainty, due to the moral seriousness of errors which inappropriately punish persons, then we should also prefer erring on the side of under-punishment when considering how much to punish those who may justly be punished. Some objections to this line of thinking are considered.
Item Type: | Journal Article | ||||||
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Subjects: | B Philosophy. Psychology. Religion > B Philosophy (General) H Social Sciences > HV Social pathology. Social and public welfare |
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Divisions: | Faculty of Social Sciences > Philosophy | ||||||
Library of Congress Subject Headings (LCSH): | Presumption of innocence, Criminal justice, Administration of -- Philosophy, Punishment -- Philosophy, Criminal law -- Philosophy, Sentences (Criminal procedure) -- Philosophy, Burden of proof | ||||||
Journal or Publication Title: | Criminal Law and Philosophy | ||||||
Publisher: | Springer Verlag | ||||||
ISSN: | 1871-9791 | ||||||
Official Date: | June 2014 | ||||||
Dates: |
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Volume: | 8 | ||||||
Number: | 2 | ||||||
Page Range: | pp. 431-447 | ||||||
DOI: | 10.1007/s11572-012-9193-6 | ||||||
Status: | Peer Reviewed | ||||||
Publication Status: | Published | ||||||
Access rights to Published version: | Restricted or Subscription Access | ||||||
Date of first compliant deposit: | 13 July 2018 | ||||||
Date of first compliant Open Access: | 16 July 2018 | ||||||
RIOXX Funder/Project Grant: |
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