Ein Verdächtiger ist kein Täter

As the director of the Business Rights Center at the fiercely pro-capitalist Atlas Society, I shall not be accused, I think, of harboring excessive sympathy for a Socialist IMF bureaucrat who stands accused of sexually assaulting a hotel chambermaid. And therefore, I want to take this opportunity to protest the treatment to which Dominique Strauss-Kahn has been subjected since his arrest on May 14, 2011.

The process of hauling a suspect around in handcuffs is often called a “perp walk,” but the term “perp” is short for “perpetrator,” meaning “the perpetrator of a crime.” Thus, the term is completely inappropriate in a system that extends the presumption of innocence to suspects. It is inappropriate as a matter of terminology, and it is inappropriate as a matter of legal impartiality. Handcuffing a person who has been found guilty of a crime and then leading him away is, strictly speaking, the only “perp walk” that should exist in America. Until the jury says “guilty,” no man should be called or even thought of as “the perp.”

American governments can and should bar their own employees from needlessly exposing handcuffed subjects to the media.

Occasionally, the practice of handcuffing a suspect may be justified, for example, when the suspect is a danger to himself or to others, as explained in this excellent article on perp walks published in the National Law Journal. There was a horrible case , five or so year ago, in Georgia, in which a defendant grabbed a deputy sheriff’s gun and murdered several people before escaping. Even so, when a suspect must be handcuffed or shackled, police and court officers can attempt to minimize his exposure in that condition. American governments cannot and should not violate the media’s right to show a suspect in handcuffs, which is what France does. But American governments can and should bar their own employees from needlessly exposing handcuffed subjects to the media.

Unfortunately, in the early twentieth century, publicity-hungry law officials, from J. Edgar Hoover to Thomas E. Dewey, used the practice of hauling suspects around in handcuffs in order to call attention to their own dashing exploits in arresting various gangsters and “public enemies.” In some of these cases, to be sure, the designation “suspect” would be highly formalistic (the gangster Alvin Karpis comes to mind). Nevertheless, the G-Man glamour of calling out “put the cuffs on him, boys” proved to be the thin edge of the wedge.

In the 1980s, the U.S. Attorney for the Southern District of New York, one Rudy Giuliani, began to employ the practice of handcuffing suspects and parading them before the media when arresting people accused of “crimes” that consisted of nothing but violating securities laws. For example, in 1987, Giuliani charged three executives with insider trading. Daniel Fischel has well described how their arrests were carried out:

[Giuliani] first ordered the arrest of Timothy L. Tabor, a former arbitrageur at Kidder, on the evening of February 11, 1987. Tabor was arrested at night at home to make it impossible for him to arrange bail. When Tabor refused to confess and cooperate, he was forced to spend the night in jail. The following day, Richard Wigton . . . was arrested at his office, handcuffed, and led away in tears before waiting television cameras. Also on February 12, Robert M. Freeman, head of arbitrage at Goldman Sachs, was arrested and handcuffed on the trading floor of Goldman Sachs. The handcuffed arrests were front-page news across the country (Payback, p. 113).

The perp walk is wrong, and therefore hauling Dominique Strauss-Kahn around, before the media, in handcuffs, was wrong.

The charges against Wigton and Tabor were later dropped. Freeman pleaded guilty to making one trade after someone said, “your bunny has a good nose.”

In the span of 25 years (an entire generation), I cannot recall the chorus of leftist journalists ever having protested the practice of perp-walking businessmen—whether in the name of civil rights or human dignity or the presumption of innocence. On the contrary, I can recall their having taken great glee in it. I have not heard them protest the practice at all—until now, when the victim is not a businessman charged with some hyper-technical violation of a meaningless securities law but a socialist bureaucrat charged with sexually assaulting a lowly chambermaid.

But we must be better than our opponents. The question should never be “whose ox is being gored.” The question should always be: What is the principle? And on that score, I believe, the principle of justice demands that we say: The perp walk is wrong, and therefore hauling Dominique Strauss-Kahn around, before the media, in handcuffs, was wrong.

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