Presumption This, Presumption That

In theory, when you’re a criminal defendant you get the “presumption of innocence”.  When you’re the prosecuting government, you get the presumption of regularity.

Everyone knows what the presumption of innocence is.  Nobody believes it, but everyone knows what it is and pays lip service to it.

But what about the presumption of regularity?

Here’s a little discussion from some law professor or other.  The case referenced for the most recent and extensive SCOTUS discussion of the idea is United States v. Armstrong.  Have a read of that 1996 case.  Bring a strong stomach.

1996, like the rest of the decade, a really good year for prosecutors at the SCOTUS.  We were at the pinnacle of the Rehnquist SCOTUS, and Armstrong is instructive.  It involves the racial disparity of federal criminal prosecutions directed at the “crack” epidemic.  Without getting into it too deeply, the result was that SCOTUS basically said that this was an issue that couldn’t be litigated by a criminal defendant because presumption of regularity.  Only Justice Stevens dissented.

Maybe we could call this admirable judicial restraint.  The history here is that as a nation we eventually addressed the “crack cocaine” racial sentencing disparity legislatively.  Twenty-two years after Armstrong, we finally got around to granting some relief to those who had been disproportionately sentenced under the now repealed law, or at least held out the possibility of relief.

On the other hand, maybe we could call this shameful judicial abdication.  Because presumption of regularity which, like all presumptions, is a legal fiction.

Here’s what happens when one fiction runs up against another:  we do some “balancing”.

We think the required threshold—a credible showing of different treatment of similarly situated persons—adequately balances the Government’s interest in vigorous prosecution and the defendant’s interest in avoiding selective prosecution.

Can the SCOTUS competently determine when a “credible showing” has been made? No. They have no experience or aptitude for weighing or evaluating evidence, and they invariably mess it up, defaulting to whatever ideological bias they bring with them.  We put it this way a few years ago:

That is, this is not a case of bias, where the Justices might (indeed, do) have a built in preference for the government or institutional litigants generally.  Bias is a less serious problem because it can be overcome in this or that case.  Incompetence can’t be overcome except by acquiring competence.

Could the Justices acquire competence in the area?  No.  Realistically, this kind of competence can be acquired only before taking the bench, not after.

But maybe the more interesting question here is:  Are the presumptions of regularity and innocence mutually exclusive in a criminal prosecution?

The presumption of regularity, as articulated by the SCOTUS in 1926:

The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.

The presumption of innocence, as articulated by the SCOTUS in 1895, drawing heavily on Roman Law, of all things:

… there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration, as the following extracts show:

“Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day.” Code, L. IV, T. XX, 1, l. 25.

“In all cases of doubt, the most merciful construction of facts should be preferred.” Dig. L. L, Tit. XVII, l. 56.

“In criminal cases the milder construction shall always be preserved.” Dig. L. L, Tit. XVII, l. 155, s. 2.

“In cases of doubt it is no less just than it is safe to adopt the milder construction.” Dig. L. L, Tit. XVII, l. 192, s. 1.


But under the presumption of regularity we do not start with a doubt.  Au contraire, we presume that the executive has ensured that the charges it has brought have been “…proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day.”

Perhaps this is an incoherence that lies at the root of the system dysfunction we have so often lamented.  It is not possible to have both presumptions in our minds at the same time.  Of course we don’t, as we took some trouble to point out a few years back:

“Legal innocence” is predicated upon the “presumption of innocence”, a hallowed myth of the Anglo-American criminal justice system.  The phrase does not appear in the constitution, but it’s regularly bandied about at criminal trials, where juries are instructed about it.

It’s like a lot of things juries are instructed about.  They often don’t believe what they’re told, and neither does anyone else, and no one expects them to.  The “presumption of innocence” is certainly one such, a pious bromide that we use to pat ourselves on the back for our supposed fairness.  In fact, the accused is presumed by everyone to be guilty.  Everyone knows this.



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Filed under epistemology, wrongful convictions

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