Presumed Punishable: Sentencing on the Streets and the Need to Protect Black Lives Through a Reinvigoration of the Presumption of Innocence

Authors

Jelani Jefferson Exum, St. John's University School of LawFollow

Document Type

Article

Publication Title

Howard Law Journal

Publication Date

2021

Volume

64

First Page

301

Abstract

(Excerpt)

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.

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Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3949712