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This post is part of the Montana Innocence Project’s #barriers2innocence campaign. As an innocence organization, we work to combat systemic racism because we know that there are numerous barriers between Black, Indigenous, and People of Color (BIPOC) and justice that exist solely because of racism. This campaign aims to highlight some of those barriers. Today’s topic is bias-motivated policing:

“Late one-night several years ago, I got out of my car on a dark midtown Atlanta street when a man standing fifteen feet away pointed a gun at me and threatened to ‘blow my head off,’ Bryan Stevenson wrote in a 2018 article for Race, Racism and the Law.

Stevenson is the founder and Executive Director of the Equal Justice Initiative. His book “Just Mercy: A Story of Justice and Redemption” was recently made into a major motion picture where he is portrayed by Micheal B. Jordan.

“As a criminal defense attorney, I knew that my survival required careful, strategic thinking. I had to stay calm,” Stevenson wrote. “I’d just returned home from my law office in a car filled with legal papers, but I knew the officer holding the gun had not stopped me because he thought I was a young professional. Since I was a young, bearded black man dressed casually in jeans, most people would not assume I was a lawyer with a Harvard Law School degree. To the officer threatening to shoot me, I looked like someone dangerous and guilty.”

Stevenson’s accolades do not make his life more valuable than any other BIPOC in a similar situation; however, the fact that a Harvard-trained lawyer would receive this treatment exhibits the power of the presumption of guilt.

After an illegal search of his vehicle and a background check turned up nothing that would warrant an arrest, Stevenson was released and told to consider himself lucky.

“While this was said as a taunt, they were right: I was lucky,” Stevenson wrote.

The Presumption of Innocence

The presumption of innocence is a cornerstone of the American criminal justice system. It means that a defendant is presumed innocent until proven guilty beyond a reasonable doubt. This protection comes from the 5th and 14th amendments, which guarantee due process. According to the presumption of innocence, if you are accused of a crime, it is entirely on the state to prove that you are guilty, and they have to be convincing enough that a reasonable person would have no doubt about your guilt. This is an incredible protection, but it is not afforded to everyone.

The Presumption of Guilt

As Stevenson explains, following the abolition of legalized slavery, the criminal justice system became the vehicle for White supremacy, and policies designed to continue the subordination of Black people emerged—one of those being the presumption of guilt. Motivated by mass incarceration (more on that next week), our society has decided that being Black or Brown is synonymous with being suspicious or being criminal.


“In America, no child should be born with a presumption of guilt, burdened with expectations of failure and dangerousness because of the color of her or his skin or a parent’s poverty,” Stevenson wrote. “Black people in this nation should be afforded the same protection, safety, and opportunity to thrive as anyone else. But that won’t happen until we look squarely at our history and commit to engaging the past that continues to haunt us.”

Watch Stevenson explain how the inadequate acknowledgement of America’s history with racism contributes to modern racial tensions:

The presumption of guilt explains why an officer would threaten Stevenson’s life simply because he was sitting in his car in a mostly White neighborhood. The presumption of guilt explains why false accusations against BIPOC are often believed without corroboration. Presumption of guilt underlies the wrongful conviction of Malcom Emory.

Malcom Emory

In 1970, Malcolm Emory, a 19-year-old student studying physics on a full-ride scholarship at Northeastern University, left the campus library after studying for a Russian mid-term. When he exited the library, he was met with about 3,000 anti-war protestors. Amid the demonstration, a police officer was struck in the chest with a brick. Despite merely being an onlooker to the protest, Emory was violently arrested and charged with assault and battery with a dangerous weapon on a police officer.

Emory received a sentence of probation and suspended six months of jail time for a crime he did not commit. As a result, his full-ride scholarship from the United States Navy was revoked and he was forced to resign from his job with the United States Naval Underwater Sound Laboratory.

Emory later recovered a photograph of the police officers beating him with a baton and him holding a stack of books, making it impossible for him to have thrown the brick. The photo, which was taken by a journalist covering the protest, was the basis for a judge to grant a new trial. Shortly after, the case was dismissed.

Repercussions of the Presumption of Guilt:

Aside from the threat or enactment of police brutality, the most reprehensible repercussion of the presumption of guilt is unjust pre-trial detention. When someone is arrested based on the presumption of guilt, they could be incarcerated as a legally innocent person for days, months, or years depending their ability to afford bail.

“Legally entitled to be considered innocent and released pending trial, many accused are instead held in pretrial detention, where they are subjected to torture, exposed to life threatening disease, victimized by violence, and pressured for bribes,” according a 2014 report titled “Presumption of Guilt: The Global Overuse of Pretrial Detention.” It is literally worse than being convicted: pretrial detainees routinely experience worse conditions than sentenced prisoners.”

Conservatively, 15 million people are impacted annually by the presumption of guilt and subsequent pre-trial detention. Tomorrow, we will discuss America’s cash bail system, which is one of the main infrastructures in place to promote unjust pre-trial detention in our country.

“Few rights are so broadly accepted in theory, but so commonly abused in practice,” according to the report. “It is fair to say that the global overuse of pretrial detention is one of the most overlooked human rights crises of our time.”

Action Steps:

  1. Presumption of guilt results in the overuse of pretrial detention, dire health and economic impacts for detainees, their families, and their communities. Learn more: “Presumption of Guilt: The Global Overuse of Pretrial Detention“; “The Radical Notion of the Presumption of Innocence”.
  2. Share this information with your peers.
  3. Contact your representatives, and tell them how you feel about the impacts of the presumption of guilt.

Thank you for participating in the Montana Innocence Project’s #barriers2innocence campaign. Tomorrow’s topics are pre-trial detention and cash bail.