Extending the Golden Thread? Criminalisation and the Presumption of Innocence*

Tomlin, Patrick

doi:10.1111/j.1467-9760.2011.00411.x

Cited by 20 publications

(11 citation statements)

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“…For another thing, the right to punish is widely taken to depend on its being inflicted for an act that is appropriately criminalized. Tomlin () offers the example of criminalizing the eating of bread to illustrate that, intuitively speaking, there are limits as to which acts may permissibly be punished by any state.…”

Section: Moral Standing Hypocrisy Complicitymentioning

confidence: 99%

Injustice and the right to punish

Duus-Otterström

Kelly

2019

Philosophy Compass

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Injustice can undermine the standing states have to blame criminal offenders, and this raises a difficulty for a range of punishment theories that depend on a state's moral authority. When a state lacks the moral authority that flows from political legitimacy, its right to punish criminal lawbreakers cannot depend on a systematic claim about the legitimacy of the law. Instead, an unjust state is permitted to punish only criminal acts whose wrongness is established directly by morality, and only when criminal guilt is established through legal procedures that meet minimal standards of fairness. These restrictions narrow the proper scope of criminal law and invalidate popular rationales for punishment that construe punishment as blame.

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Section: Moral Standing Hypocrisy Complicitymentioning

confidence: 99%

Injustice and the right to punish

Duus-Otterström

Kelly

2019

Philosophy Compass

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“…We would then need to assess That is, many people are not morally indifferent to the distinctions between what a state brings about directly through its agencies and what it fails to prevent. The idea that someone would be criminally sanctioned in the name of justice and under the color of law for acts that are morally permissible is deeply disconcerting (Husak 2007;Tomlin 2013). And of course there are other significant costs to the population when conduct is wrongly criminalized.…”

Section: VImentioning

confidence: 99%

“…One possible clue is to be found within the prevailing norms of the criminal justice system itself (Tomlin 2013 it is better that ten guilty people go free than that one innocent suffer conviction and punishment (Blackstone 1765). Why is this so?…”

Section: Comparing Wrongsmentioning

confidence: 99%

“…Therefore, conduct can be criminalized even when the average credence in the permissibility of doing so is 26%. In our view, this seems a very good reason to depart from common practice and reject the My Favorite Theory approach to criminalization (see furtherTomlin 2013). If we apply the Expected Moral Value approach to the question of criminalization things are more complex.…”

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confidence: 94%

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Moral Uncertainty and the Criminal Law

Barry

Tomlin

2019

The Palgrave Handbook of Applied Ethics and the Criminal Law

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“…There have also been questions raised about the conformity of various substantive criminal law provisions with the presumption (Tadros and Tierney ; Duff , 125ff. ; Tadros ; Tomlin ). Strict liability provisions in the criminal law appear at odds with the presumption, as do prohibitions that are so broadly or vaguely worded as to indiscriminately sweep in both those innocent and guilty of engaging in actions that are appropriately proscribed.…”

Section: Introductionmentioning

confidence: 99%

The Presumption of Innocence in the Trial Setting

Lippke

2015

Ratio Juris

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The starting frame with which jurors begin trials and the approach which they should take toward the presentation of evidence by the prosecution and defense are distinguished. A robust interpretation of the starting frame, according to which jurors should begin trials by presuming the material innocence of defendants, is defended. Alternative starting frames which are less defendantfriendly are shown to cohere less well with the notion that criminal trials should constitute stern tests of the government's case against those it has charged with crimes. The intuitive case for the robust presumption of innocence is supplemented with empirical evidence concerning the psychology of belief formation and preservation. Various objections to the proposed starting frame are addressed.

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Extending the Golden Thread? Criminalisation and the Presumption of Innocence*

Cited by 20 publications

References 0 publications

Injustice and the right to punish

Injustice and the right to punish

Moral Uncertainty and the Criminal Law

The Presumption of Innocence in the Trial Setting

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