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Can a country that loves “perp walks” really believe in the presumption of innocence?

What you’ll read today

  • Spotlight: Can a country that loves “perp walks” really believe in the presumption of innocence?

  • New York just changed the way it prosecutes kids, but some got left behind

  • D.C. will decriminalize subway fare evasion

  • New York City Councilmembers ask NYPD why those caught with vaping marijuana oil are charged as if they were caught with heroin

  • Study shows racial bias in jury selection, proposes remedies

  • Homeless man’s 10-year sentence for stealing underwear is fine, according to Illinois Supreme Court

In the Spotlight

Can a country that loves “perp walks” really believe in the presumption of innocence?

This week’s Retro Report in the New York Times—a short video documentary that uses news stories of the past to help explain the present—focuses on the evolution of the so-called perp walk. “Parading the accused and the condemned before the citizenry is an age-old tactic used by those holding power,” Clyde Haberman writes. “[P]ublic shaming has not disappeared” and the “modern version is known as a perp walk. As in days of old, a criminal suspect is displayed in front of a fevered crowd—composed now not of the howling masses but of camera and microphone holders pushing and shouting in sweaty pursuit of the best possible lens angle.” [Clyde Haberman / New York Times]

In the 1980s, then-prosecutor Rudolph Giuliani “built a tough-guy reputation by marching accused Wall Street types before the press,” and even though some of the cases fell apart, “they were good publicity for Giuliani,” and fueled his run for mayor. “When it comes to the rich and mighty — say, a Harvey Weinstein or a Martin Shkreli, the smirking hedge fund manager — there is an inescapable reality: Many people take pleasure in seeing them demonstrably brought low,” Haberman writes. “For that reason alone, the perp walk seems destined to go on.” [Clyde Haberman / New York Times]

In 1995, a New York man under arrest was put back into a police car and forced to walk into the police station again because the television crew had missed the first shot. A federal judge ruled that this went too far: The intent was to humiliate the man, with “no legitimate law enforcement objective or justification.” And in 1963, while Dallas police led Lee Harvey Oswald, President John F. Kennedy’s accused assassin, past news crews, Jack Ruby killed him. In 1984, a man suspected of kidnapping and molesting a child was being walked before the media in Baton Rouge, Louisiana, when he was fatally shot by the victim’s father. [Clyde Haberman / New York Times]

In a forthcoming law review article, law professor Anna Roberts explores the devastating fusion of arrests and guilt in the U.S., noting that arrests can lead to stigmatizing acts including the perp walk. “‘Perp’ is, of course, short for ‘perpetrator,’ and both the act and the terminology used to describe it suggest an assumption that an arrest equals guilt,” Roberts writes. “As JaneAnne Murray puts it, ‘[t]his walk is an embodiment of the presumption of guilt, and the criminal justice system’s faith in the screening role police officers play in separating the culpable from the innocent.’ In light of these consequences, one may wonder about the extent to which the doctrinal prohibition on pre-conviction punishment is honored.” [Anna Roberts / Alabama Law Review]

When International Monetary Fund Managing Director Dominique Strauss-Kahn, then considered a front-runner for the French presidency, was arrested and charged with attempted rape in New York, many French people seemed most outraged by the perp walk. “There’s a general feeling of a media, a judicial fury—of a lynching,” said Jack Lang, France’s former minister of culture and education. Then-Mayor Michael Bloomberg’s response was both American and nonsensical: “I think it is humiliating, but if you don’t want to do the perp walk, don’t do the crime,” he said. He did acknowledge that the “real sad thing is if somebody is accused, does the perp walk, and turns out not to have been guilty. And then society really should look in the mirror and say we should be more careful the next time.” Indeed, the charges against Strauss-Kahn were dropped after questions arose about the credibility of the accuser. [Urvi Nopany / Telegraph]

New York radio host Brian Lehrer asked whether it is fair for someone who is accused of a crime “key word: accused” to be paraded around in handcuffs or if the French do it better by forbidding the publication of images of a person in handcuffs before they are convicted. One of the guests on Lehrer’s show was Murray Weiss, a former criminal justice editor for the New York Post, which is famous for tabloid-style images of perp walks. Weiss discussed the “tug of war” between the right of the public to see these images, the right of the media to capture them, and the right of the person who is accused, which he did not articulate. But the suggestion that this is a tug-of-war shows that those who make a living off of perp walks are missing the point, that these images undermine the central constitutional right to be presumed innocent. [Brian Lehrer / WNYC]

One caller to the show described the devastating effect that a public perp walk had on him, for charges that were false and later dropped. Another guest, a French journalist, explained that in France the burden is on the prosecution to prove guilt, apparently under the impression that the same was not true in the U.S. This prompted Lehrer to ask, “Do we really understand that this person is merely accused in a system of innocent until proven guilty when we see the handcuff shot?” But in the same segment, Lehrer slipped and referred to people on perp walks as perps, before quickly correcting himself by saying, “accused perp.” [Brian Lehrer / WNYC]

It’s become a joke in this writer’s home that when her husband makes any kind of accusation––that she forgot to take out the trash, for example, or that their toddler son hurled his dinner across the room––she immediately corrects him with a finger in the air, and the word “allegedly.” It’s a joke, but it’s not a joke.

Professor Roberts notes that the fusion of arrest and guilt is apparent in the “linguistic and statistical ‘slips’ that confuse ‘offenders’ with arrestees, and ‘crimes’ with alleged crimes,” and says that if “this distinction has indeed collapsed … an array of perhaps otherwise puzzling failures of reform—in areas that include defense representation, prosecutorial conduct, police conduct, and pre-adjudication suffering—may make more sense. Exposing this fusion is a necessary first step toward a new stage of reform.” [Anna Roberts / Alabama Law Review]

Stories From The Appeal


Photo illustration by Anagraph. Photo by ProPublica

New York Just Changed the Way it Prosecutes Kids, But Some Got Left Behind. Under Raise the Age, “there are kids similarly situated who are being treated totally differently.” [Cassi Feldman]

Stories From Around the Country

D.C. will decriminalize subway fare evasion: Yesterday, the Council of the District of Columbia gave final approval “to a measure decriminalizing Metro fare evasion, paving the way for fare-jumping to become a civil offense” punishable by a $50 fine, the Washington Post reports. This would replace existing criminal penalties that include arrest, a fine up to $300, and up to 10 days in jail. The Metro opposed the measure, arguing that it would cause them to lose revenue and possibly lead to more crime. “Council members and activists rejected that line of argument and said decriminalizing the act was an important step toward addressing disproportionate policing of African Americans on the transit system.” A recent report from the Washington Lawyers’ Committee for Civil Rights and Urban Affairs found that there has been a crackdown in fare evasion enforcement, and 91 percent of those citations and summonses were issued to Black people. Black children as young as age seven have been stopped. [Faiz Siddiqui / Washington Post]

New York Councilmembers ask NYPD why those caught with vaping marijuana oil are charged as if they were caught with heroin: Two members of the New York City Council, Donovan Richards and Rory Lancman, who is running for Queens district attorney, are asking why police still make arrests for THC oil—a marijuana derivative found in vape oils—despite a directive to stop arresting people for low-level marijuana possession. In their letter to NYPD Commissioner James O’Neill, they write, “If anything, this form of use seems like a safer and less intrusive way of consuming marijuana than traditional smoking, which is explicitly covered by the City’s new marijuana enforcement policies.” An NYPD spokesperson said the department will review the letter. [Janon Fisher / New York Daily News] This letter was prompted, in part, by The Appeal’s article revealing how those “caught vaping marijuana oil face the same charge as for low-level heroin possession.” [Raven Rakia / The Appeal]

Study shows racial bias in jury selection, proposes remedies: Despite Supreme Court rulings dictating otherwise, racial bias seems to permeate jury selection, especially when it comes to prosecutors’ decisions to strike nonwhite jurors. New research on juror removal in North Carolina shows that these peremptory challenges “are indeed a vehicle for veiled racial bias that results in juries less sympathetic to defendants of color,” writes Wake Forest University law professor Ronald Wright. His research also found that “judges also remove black jurors ‘for cause’ about 20 percent more often than they remove available white jurors.” This results in juries that are not a cross section of defendants’ communities, and cynicism about the justice system among those excluded. Wright suggests that state courts adopt rules like the one recently adopted in Washington State that outlaws peremptory challenges “defended with explanations highly correlated with race, like ‘prior contact with law enforcement’ or ‘living in a high-crime neighborhood.’” He also suggests that more information about judge and attorney juror strikes be made public. [Ronald Wright / New York Times]

Homeless man’s 10-year sentence for stealing underwear is fine, according to Illinois Supreme Court: “A divided Illinois Appellate Court panel on Tuesday upheld a 10-year prison sentence to an addicted homeless man who had robbed $33 of underwear from a Family Dollar Store in 2015,” reports Injustice Watch. The majority opinion held that the appellate court should not substitute its judgment for that of the trial judge, who imposed the sentence on defendant David Lundy in part because of his 10 prior convictions. But in a stinging dissent, a judge wrote that the “sentence punishes Lundy more for the numerous difficulties brought about by his economic status (impoverished), illness (drug addiction), and condition (homelessness) than for the offense for which he was convicted.” The dissenter also noted that Lundy had not been convicted of any violent offense for over two decades and cited the words of former South African President Nelson Mandela: “A nation should not be judged by how it treats its highest citizens, but its lowest ones.” [Abigail Blachman / Injustice Watch]

Thanks for reading. We’ll see you tomorrow.

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