CORRECTION TO THE CENTRAL PARK JOGGER STORY: WITH SOME REFLECTIONS ON PRIVACY, AND ON THE PRESUMPTION OF INNOCENCE

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Tom McGuire (the MinuteMan) has more on the Central Park story, arguing that the five men were almost certainly guilty of aggravated assault and riot. My general points about cases of actual innocence (in my earlier post on this topic) stand, but if Tom is right — and he’s certainly thorough and convincing — they probably don’t apply to this case. The good news is that the five have completed their sentences, so, whatever the underlying facts, at least we don’t have innocent people behind bars while the system spins its wheels.

McGuire also points out that the case illustrates the willingness of some people to leap to bad conclusions about cops and prosecutors, which he reasonably compares to the willingness of some cops and prosecutors to leap to bad conclusions about young black and Latino men. He then brings in the Noelle Bush case, citing a blogger who, he says, is willing to convict her of cocaine possession on no more than newspaper accounts. “So much,” quoth the MinuteMan, “for innocent until proven guilty.”

He’s certainly right that leaping to bad conclusions about other people is a human tendency we would all do well to beware of. But I think he’s wrong, though not unconventional, in moving the presumption of innocence from its proper application to criminal trials to the broader context of public debate. The presumption of innocence, like the rules of evidence, is a procedural safeguard against the overuse of the awesome power of the state to punish. It means that, when a person is accused of a crime, the state must carry a very heavy burden of proof before that person can be adjudged guilty, and therefore punishable. In particular, no one can simply be accused and then forced to prove that he is innocent. That same principle ought reasonably to apply, though with diminished force, to other circumstances where an institution wields great power over an individual: in the employment context, for example.

After the Sam Shepard case, where relentlessly slanted newspaper coverage helped convict a probably innocent man of murder, the news media adoped practices amounting to a presumption of innocence in criminal cases: in general, respectable outlets will not say that someone is guilty unless and until there is a guilty plea or a conviction; until then, the defendant is “alleged” to have done whatever he is charged with doing. Sometimes that can be taken to fairly funny extremes, as in today’s AP headline about a woman caught on videotape beating her 4-year-old daughter: “Mother in alleged videotape beating turns herself in.” To call the incident an “alleged battery” would be correct; legally, she’s presumed innocent of the crime of battery until she pleads guilty to it or a jury finds her guilty of it. But “alleged videotape beating”? That the videotape exists, and shows a beating, are matters of fact, not allegation. Only the legal conclusion that the beating constituted an unlawful battery remains in suspense.

Saying “Noelle Bush was caught using cocaine last week” in a blog, or even a newspaper, does not inflict on her, or expose her to, any punishment whatever, though it does make people think worse of her, which is no doubt an injury. It would be charitable to hope that she is innocent of the charge, but it’s certainly not a logical presumption, and there’s no particular reason it should be a procedural presumption outside its criminal-law context. After all, we form bad opinions about other people all the time on matters that aren’t criminal at all; is it only those who break the law who should be presumed, in ordinary discourse, not to have done something bad? Bill Clinton was never tried for his activities with Monica; does that mean I have to presume, or pretend to presume, that the blue dress was stained with milk?

One of the silliest of the anti-war arguments is that we don’t have “proof” that SH is making weapons of mass destruction. Well, we surely don’t, to a criminal-law standard of proof, but so what? It seems to me the relevant legal concept isn’t the presumption of innocence or its correlative proof beyond reasonable doubt, but “probable cause,” defined as information that would lead a person of ordinary prudence to take action.

The other complaint that has been heard in in the Noelle Bush case (and cases involving her cousins) is that talking about it is an invasion of privacy. Granted, that she isn’t a public figure, and hasn’t (unlike a movie star) virtually asked to be gossiped about. That makes gossiping about her wrong, and the more public, the more wrong. If she were suffering from MS or depression, or had just broken up with her boyfriend, everyone else ought to shut up about it unless she wanted to talk.

But Jeb Bush is a public figure, with a set of public positions. It’s not unfair to ask whether he’s prepared to have the policies he advocates in general applied close to home, any more than it was unfair to criticize Bill Clinton, a strong advocate of public education and opponent of vouchers, for sending his own daughter to a private school. Jeb is strong on law and order. Jeb signed a bill tightening penalties for drug possession, a bill under which people who act as his daughter has apparently acted go to prison. Jeb has cut funding for publicly paid drug treatment. Does he think his daughter should go to prison? Does he want his daughter to go to prison? Does he think her substance abuse disorder should go untreated? And if he does think that his daughter should not go to prison and should receive treatment, why is someone else’s daughter different? Would he now like to reconsider that law he signed and those budget decisions he made? All those are fair questions, though of course painful for him to answer.

There’s also evidence that the treatment program where Noelle Bush was living was cutting her special slack — the call to the police came from another client, who said that this was Noelle’s fifth incident of cocaine possession — and that the administration there engaged in something that looks very much like obstruction of justice in an attempt to keep the police from being able to make a case against her. (The program is now claiming an obligation under Federal privacy law not to cooperate with the police.) That sort of stuff happens a lot when your father is Governor. Even if your father isn’t Governor, some of it happens if you’re rich (and white). And those facts, surely, are legitimate matters for public discourse.

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: Markarkleiman-at-gmail.com

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