The goal of the police is to investigate crimes and the DA’s office to prosecute them, while the goal of the media is to inform the public. Sometimes these goals overlap, as when the police turn to news outlets to reveal information that they hope will lead to further clues. Other times, the police don’t want to release information for fear of tipping off the suspect, making the arrest more difficult and the DA fears that some information may taint their prosecutorial efforts.
There is one occasion, though, where the desires of the justice system and the media coincide: the ‘perp walk.’
In a perp walk, the suspect is put on public view when being moved from the station house to the courthouse. The police favor perp walks because it demonstrates their prowess in catching criminals; DA’s like the display because it begins to build their case in the public’s mind that the suspect, disheveled, dazed, dirty and worn, is a disreputable character; and the media like the procedure since they get action pictures for the dailies and nightly newscasts of the accused with hands cuffed behind their backs.
This is great stuff for all concerned, especially in high-profile cases, such as Dominique Strauss-Kahn, the IMF chief accused of sexually assaulting a hotel chambermaid. All but the accused, that is. And the French pubic, which was outraged that Strauss-Kahn’s photo could be splashed in papers and TV this way. The French justice system goes to great lengths to protect the identities of the accused. The Civil Code of 1970 states that “Everyone has the right to privacy” and was upheld by the French Constitutional Court in 1995.
Two important rights are in conflict here. There is the right to privacy, an important ethical consideration that goes to the heart of personal autonomy and human dignity. Samuel Warren and Louis Brandeis, in their 1890 essay “The Right to Privacy,” described privacy as “the right to be let alone—the most comprehensive of rights and the right most valued by civilized man.”
The other right in play is that of the public to be informed, a serious consideration for a serious press in a democratic society where it is imperative that citizens know the workings of their social institutions. The right to know is what underpins the value of the movement towards transparency both in government and business dealings.
Either of these rights can be taken to the extreme or trivialized. A corrupt politician can use privacy as a way of avoiding scrutiny of conflict of interest, for example, while a sensationalist press can use the principle of informing the public when they harassing a hapless movie star.
The perp walk stands at the intersection of the values of privacy and transparency—and a third, namely, the assumption of innocence until proven guilty. Even the term for the procedure is problematic and prejudicial. The so-called perp (perpetrator) is at this point accused of a crime, not guilty of one. The perp walk is a public relations move by the police and the first maneuver by the DA in presenting the case. It is trying the case in the court of public opinion, a dubious ploy by the prosecutor.
In upholding the constitutionality of the perp walk, Judge Fred Parker revealed the tension in the procedure by noting that “Whether the accused wrongdoer is wearing a sweatshirt over his head or an Armani suit on his back, we suspect that perp walks are broadcast by networks and reprinted in newspapers at least in part for their entertainment value,” but then added that [“They] also serve the more serious purpose of educating the public about law enforcement efforts. The image of the accused being led away to contend with the justice system powerfully communicates government efforts to thwart the criminal element, and it may deter others from attempting similar crimes.”
French law and recent decisions in British law see little legitimate interest in photographing the accused (or even revealing their names until the end of the trial). While not revealing the names of those in criminal procedures has its values, on balance putting such restraints on the press creates more serious problems. As a result of the Strauss-Kahn case, many in France are recognizing the way in which the powerful have been protected by a system that imposes silence and operates behind closed doors. American judges may close proceedings to the press but only as an exception and after publicly offering their reasons for doing so.
Legal challenges to perp walks have been rare and none have made their way to the Supreme Court. Whatever the legal disposition, I think the ethical argument against perp walks is strong. As Christopher Beam in Slate writes, “perp walks aren’t disappearing anytime soon. Police love them. The media love them. And by the time any of the perp-walked suspects are proved innocent, everyone else has moved on.”
It is difficult not to be swayed by perp walk images, but recognizing their dubious moral standing makes it easier to keep an open mind regarding the guilt or innocence of the accused.