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Report No. 78

1.9. Principles of jurisprudence and penology.-

Two countervailing principles of jurisprudence, and one principle from penology, seem to underlie the special provisions made for unconvicted persons in custody1. First, unconvicted prisoners must be presumed to be innocent.2 As such, it is inappropriate that they should be subjected to greater harassment than is warranted by law, or that they should be detained with convicted persons, or that they should be deprived of any rights that pertain to non-accused persons other than those deprivations that are inherent in the very process of detention.

The presumption of innocence (on which these propositions are based) is, however, tempered by a second principle, namely, that the course of justice must proceed unhindered by the activities of those who would seek to subvert it. These are the two countervailing principles of jurisprudence. Then, there is the basic principle of penology that those not contaminated should be protected from baneful contact with those who have been adjudged to be guilty of crime.

1. Compare King and Morgan A Taste of Prison, (1976), pp. 31, 32, 33.

Congestion of under trial Prisoners in Jails Back

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