Against the “perp walk”

In law, Dominique Strauss-Kahn is innocent until proven guilty. But outside the courtroom I see no reason to suspend the ordinary rules of common sense; if I had to bet, I’d bet that he was guilty in fact not merely of this alleged assault but of previous ones. (The endorsement of Bernard-Henri Levy, last seen defending Roman Polanski, somehow fails to persuade.) And it’s fair to ask some tough questions about the political and legal culture of France that apparently allowed DSK to have simultaneous careers in high-level politics and sexual predation.

But this bothers me:

He even was subjected to a ritual familiar to high-profile suspects: the so-called perp walk, providing newspapers around the world with a front-page picture of Mr. Strauss-Kahn being led away from a police station in handcuffs.

It seems to me that showing someone in manacles is a visual statement of guilt. Even putting aside the physical discomfort and personal humiliation of being cuffed, arranging for that photo to be in every newspaper and on every TV news show is an especially vicious and unnecessary form of punishment without trial. Obviously, DSK wasn’t going to escape, or grab a cop’s gun. Even in cases where the cuffs are necessary, showing someone in cuffs isn’t. And it ought to be against the rules.

So while I agree with Matt Yglesias that we should be happy to have a criminal justice system less biased in favor of rich and prominent malefactors than some in France prefer, I’d prefer to equalize on a “perp walks for no one” basis rather than a “perp walks for everyone” basis.

Rudy Giuliani’s decision to perp-walk a bunch of financial-sector folks he couldn’t actually convict is high on the (long) list of reasons we should count ourselves lucky to have been spared a Giuliani Presidency.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

19 thoughts on “Against the “perp walk””

  1. Heck, at least with the perp walk they admit that you’re being treated as a perpetrator, and legal protections kick in. You know what gets my goat? “Person of interest”.

    And, frankly, if were given the chance to magically change just one thing about our ‘justice’ system, the perp walk would be well down the list. No knock searches. Civil forfeiture. That constitutional atrocity last week in a href=>Indiana. The fact that, after the legal system finds you innocent, and spits you out, you’re never made whole.

    Nah, perp walks might be objectionable, but they’re way, WAY down the list.

  2. The prosecutor has individual, idiosyncratic reasons to respond to the incentives which institutions create. Just like Professors of public policy. Try say something nice about Sarah Palin.

  3. The fact that perp walks are not as grievous a wrong as the other wrongs that Brett lists is beside the point. It would be comparable to saying that doctors should not be working to cure blindness or deafness because they are not as serious as cancer or heart disease. Or that animal rights advocates should be concerned about human rights instead.

  4. Is the perp walk a necessary evil? I think there’s an argument to be made that as long as any people are shackled and paraded in front of the public, all should be. Otherwise it’s going to be overwhelmingly poor people, minorities, people who mouth off to the police or whom the police dislike for other reasons who are going to be evaluated as posing enough of a risk of flight or violence that they need to be shackled in public. The middle and upper-class types, well, they’re gentlefolk. They wouldn’t make a scene.

    There’s also the argument that a rich person is more likely to draw media attention on their perp walk, and that the results are thus more damaging to their esteem and career than for a poor person. But I don’t think that’s ultimately an argument we want to accept.

  5. The fact that an evil (in this case, an unnecessary perp walk) is often inflicted unfairly on one class of people is not a good argument for inflicting it unfairly on all classes of people. It reminds me of Justice O’Connor’s concurring opinion in Lawrence v. Texas that the only thing wrong with locking up gays for committing sodomy was that Texas didn’t also lock up straights for the crime.

  6. Henry: It depends on what the alternatives are. If texas police had regularly been locking up straight people for committing sodomy the odds are that the law would have been off the books decades earlier.

  7. Paul, I agree that inflicting the evil on people other than disfavored minorities can be a means to eliminate the evil. But does that end justify the means? We all know that whites and blacks use illegal drugs in the same proportion, yet the laws are used as a substitute for Jim Crow: So should we start locking up more white people for drug possession? Or we hear claims that a military draft would keep us out of wars (even though the war in Vietnam lasted eight years notwithstanding the draft). Would that justify the ultimate governmental deprivation of liberty and, in many cases, life?

  8. I just realized that my example of the draft is not analogous, because no one is being drafted now. The analogy would be if only men were being drafted and people demanded that women be drafted too.

  9. “We all know that whites and blacks use illegal drugs in the same proportion”

    Um, we do? I know neither that, nor that they don’t. Somebody has reliable numbers on this? How’d they get them?

  10. Brett: actually in some cases we kinda do. One of my favorite examples for this was a study of pregnant women, whose urine was tested for marijuana and cocaine (anonymized, but with race and some other factors recorded). Black and white rates were indistinguishable, but rates for referral to law enforcement (florida, where the study was done, has suspicions of drug use as a reportable condition for medical personnel) skewed 5:1 black.

    Henry: I believe that if a government is going to inflict evil (and it usually is) then inflicting it in an even-handed way is far better than explicit inequality, or even the various outsourced versions. Not just because it’s more likely to get the evil to stop, but because it’s the worst policy except for all the others.

  11. Paul: We must take into account whether or not inflicting the evil in an evenhanded way increases the amount of evil. If we increase the number of whites arrested for drug possession and decrease the number of blacks by the same number, until the ratio of people arrested to people who possess is the same for both groups, then that would inflict the same evil more fairly. But, if we continue to arrest the same number of blacks for drug possession, and increase the number of whites arrested, then that would not be good in itself. Rather, it would be a greater evil, except that it might have the indirect consequence of increasing the pressure to repeal drug prohibition.

  12. Perhaps you are confusing an evil (putting nonviolent folk in prison) with another evil, the unfair enforcement of law (overpolicing people of color). We can be against both of them, and now we just have the question of strategy.

    Unfortunately, I think it is often only when powerful people experience a bad thing that they start to realize what life is like for others. So if the practice in New York is to handcuff suspects of color (and recall, the alleged crime here was a violent act), then what would be the argument for *not* doing it to this guy, just because he’s famous?

  13. ‘Cause the actual walking in part, well, that’s just the breaks when you get arrested, isn’t it? They aren’t going to wheel you in. And taking famous people in the back would be favoritism, wouldn’t it?

  14. Having said that, I’m not sure why some kind of house arrest before the trial couldn’t work, if he wears one of those gizmos. I wonder what the likelihood of him trying to sneak out of the country would be? He already gave up his passport.

  15. Rudy Giuliani rose to fame and fortune by using the perp walk to solidify his tough on crime bonifides. It was the cornerstone of his “broken window” anti crime regime that all crime was vigorously prosecuted and the results of those prosecutions available for everyone to see. If you have a problem with the perp walk, where have you been for the last 20 years? It shouldn’t only be used for poor black people. I think that a guy can spend one night in a 3,000 dollar hotel suite and the next in Riker’s Island is an example of everything that is right with American justice. Equal and aggressive.

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