Hey France, You Are Right About the Perp Walk

The pre-trial practice of parading those accused of criminal conduct before the press is terribly prejudicial and unfair

dskperp.banner.jpgOf all the discordant notes that have been sounded since the arrest last week of former International Monetary Fund chief Dominique Strauss-Kahn, the most disappointing may have come from Michael Bloomberg. Of the now famous "perp walk" of the world's most famous rape suspect, the mayor of New York City said: "I think it is humiliating, but you know if you don't want to do the perp walk, don't do the crime." Then, perhaps sensing that he had gone too far in prematurely adjudging Strauss-Kahn guilty, the mayor added: "The real sad thing is if someone is accused and does the perp walk and turns out not to be guilty, then society really ought to look in the mirror."

Relax, society, and move away from the mirror. Whether Strauss-Kahn ends up being convicted or acquitted or something in between, most Americans don't need to look in the mirror or otherwise answer to furious French officials -- or anyone else -- for the policy and practice behind the "perp walk." The parading of a criminal suspect in front of the cameras shortly after an arrest, almost always in handcuffs, is not a societal problem like eating too much sugar or playing too many violent video games. It is not a national epidemic like sexting or reality television or methamphetamines or "meat-lovers" pizzas. It's not like the deficit or carbon emissions.You aren't responsible (unless you've convicted someone of a felony because you thought he looked guilty during his perp walk).

The perpetrator's walk instead is the result of one of the most cynical conspiracies in all of modern-day criminal justice. It is an officially-sanctioned and eternally re-enacted plot between the media and the police, the overt act of which benefits both parties  -- and prosecutors as well -- at the expense of the suspect. It is done so flawlessly and routinely now that hardly anyone in America even realizes anymore how prejudicial and unfair it is to a defendant. We simply take it for granted today that the public image of a presumedly innocent person can lawfully be manipulated by the government and its agents. That's why so many of us were so surprised when the French expressed outrage over the way Strauss-Kahn was treated after his arrest. Sometimes, it takes an outsider to see clearly the truth.

The police naturally have an interest in publicly displaying their fruits of their labor -- a suspect who looks guilty, as we all would if marched about in handcuffs after sleepless hours in detention -- and the media naturally have an interest in publishing the images they receive from the walks. (If I had a dollar for every time a perp walk was broadcast on television B-roll over the past 15 years I can tell you flatly that I wouldn't be sitting here writing this column). At fault are both the law enforcement officials who arrange to "walk the perp" at a specific time and place -- there is a reason the cameras are almost always there, folks -- and the reporters and producers who endlessly replay the images and take convenient cover under the First Amendment's free press rights. They use the First Amendment as a putative shield, even as they use the images themselves as a sword that cuts deeply into the Sixth Amendment fair trial rights of the accused.

And, whether they or not they are directly involved in it, prosecutors of course are delighted by the conspiracy. They are unjustly enriched by it because it can cement into the minds of potential jurors an image of guilt that can be indelible. Quick. Tell me what flashes into your mind if I say the words "Timothy McVeigh." You see him in that orange jumpsuit leaving that building, don't you? Perp walk -- and perhaps the only moving image many people ever saw of McVeigh before he was executed. Just imagine how many times America would have seen the Lee Harvey Oswald perp walk -- the worst perp walk in history, you could reasonably argue -- even if he weren't shot by Jack Ruby in the middle of it. And the courts sanction it all because, well, because judges believe they can cure bias and prejudice through voir dire and then jury instructions.

The "perp walk" has gotten a lot of publicity in mainstream America over the past 20 years, ever since another blunt New Yorker, Rudy Guiliani, began to use it as a federal prosecutor's tactic to shame and humiliate rich white men in and around Lower Manhattan. But it's been around a lot longer than that. New York magazine ran a great piece Thursday chronicling part of the history behind the show. Even in 1925, before television, it occurred with high-profile suspects. What the piece left out was mention of the "courtesy calls" from public information officers to reporters or camera crews that coordinate the craft. Thankfully, the folks at Poynter posted a good piece the other day about the journalistic ethics and legal precedent behind the perp walk. It's candid. Check it out here -- especially if you live overseas. (I wrote a piece on the subject in 1997 for a publication called The Media Studies Journal but cannot find it online).

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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