1978 Wis. L. Rev. 441 (1978)
Punishing the Innocent: The Need for Due Process and the Presumption of Innocence Prior to Trial

handle is hein.journals/wlr1978 and id is 455 raw text is: PUNISHING THE INNOCENT: THE NEED FOR DUE
PROCESS AND THE PRESUMPTION OF
INNOCENCE PRIOR TO TRIALt
JEFF THALER*
INTRODUCTION
For the thousands of Americans who are detained in jail pend-
ing trial or plea bargain,' the fundamental principles of due process
of law and the presumption of innocence are virtually meaningless.
The two principles are given substance at the trial stage by the state's
burden of proving guilt beyond a reasonable doubt,2 yet only a rela-
tive handful of accused ever reach trial.3 For the overwhelming ma-
jority of detainees, incarceration in jail becomes punishment before
conviction and without due process of law; the myth that a person is
presumed to be innocent until proven guilty becomes in reality a
harsh presumption of guilt.
Under the current pretrial process, a person's assumed inno-
cence is overcome by an arrest or indictment based on probable
cause. The accused then faces a bail proceeding where a magistrate
uses the severity of the unproven offense to predict whether, if re-
leased, the accused will flee or commit a crime. If bail is set high
enough, the accused becomes a detainee and will probably remain in
jail after his probable cause determination is held several days later.
While the unconvicted detainee is not supposed to suffer any punish-
ment,4 the consequences of pretrial detention are quite similar to
those of postconviction incarceration. After several months of trying
to survive dehumanizing jail conditions, the typical accused will al-
most certainly succumb to the pressures to plead guilty and to give
up his right to a trial.
If we take seriously the criminal process's concern that the mar-
gin of error in factfinding be reduced so that an innocent person is
not punished until he is found to be legally guilty,5 then we must
t I am grateful to Professor Joseph Goldstein for initial encouragement and particularly
grateful to Professor Daniel Freed for constant enthusiasm and critical feedback on earlier
drafts of this article.
* Staff Attorney, Criminal Appeals Bureau, The Legal Aid Society of New York City.
B.A., Williams College 1974; J.D., Yale University 1977.
1. A federal census of city and county jails by the Census Bureau for the Law Enforce-
ment Assistance Administration found that on March 15, 1970 over 83,600 people were in jail
awaiting arraignment or trial. N.Y. Times, Jan. 7, 1971, § i, at i, col. 4.
2. See notes 121-25 infra and accompanying text.
3. Only I-10% of all defendants may receive a trial. Seenote 77 infra
4. See note 46 infra and accompanying text.
5. The doctrine of legal guilt means that a person is not guilty of a crime merely by a
showing of probable cause to believe he actually-factually--committed the offense. Rather,

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