Sunday, February 5, 2012

Liberty rights are at risk

The Youngstown Vindicator
February 5, 2012

The presumption of innocence is one of the most overworked phrases in the criminal justice system. For all its fame and usage the presumption of innocence is not mentioned anywhere in the U.S Constitution.

Scrupulous prosecutors are careful to affix “alleged” when talking about a suspect. Defense attorneys are eager to point out that their clients are innocent until proven guilty. NBC legal analyst Dan Abrams wrote in The Wall Street Journal, “Demanding that all of us presume every defendant innocent outside of a courtroom is to demand that we stop evaluating facts, thereby suffocating independent thought and opinion.”

The presumption of innocence is more a rule of evidence than a rule of law. A jury, or judge, must presume an accused person innocent until proven guilty beyond a reasonable doubt. No one is entitled to the presumption of innocence before trial begins.

Fundamental rights

Although the presumption of innocence is an issue for trial, there are a growing number of situations that appear to encroach on fundamental liberty rights before an accused is adjudicated guilty.

For instance, in the state of Washington, lawmakers are considering collecting DNA from individuals after arrest, rather than after conviction. Opponents say it is unconstitutional and supporters say the measure would prevent violent crime.

The law would require law enforcement to collect DNA from those arrested for felonies and some misdemeanors, much in the same way that every suspect is fingerprinted at the time of arrest. The DNA would then be entered into a state database.

“I don’t think that any person should have their DNA taken before they are convicted,” State Representative Sherry Appleton told The Olympian. “In this country, you are innocent until proven guilty; it’s not the other way.”

In New Jersey, Gov. Chris Christie has proposed a bail reform measure. He proposes giving judges the discretion to deny bail based on the defendant’s history and potential for further violent behavior even though the defendant has not yet been convicted. In most states, a defendant can be denied bail only if facing a capital offense. Bail is to insure a defendant’s appearance for future court proceeding, it is not, nor should it be, punitive in nature.

Opponents argue that imprisoning individuals while awaiting trial, which could easily be months or years in the future, is an egregious civil rights violation and establishes a precedent that could be used to punish or coerce someone accused of a crime, according to the Times of Trenton.

South Dakota Sen. Mark Johnston is proposing a bill that would eliminate the statute of limitations for rape cases. He argues that rape is one of the vilest things a human being can do to another person and there should be no limit for prosecuting the crime, reported the Rapid City Journal.

Under Sen. Johnston’s proposal a defendant could face criminal prosecution based on allegations of rape that occurred 50, 60 even 70 years ago. The statute of limitation has been around since antiquity. As time passes memory fades, witnesses die and evidence disappears. The statute of limitations protects individuals from facing charges under those hopeless circumstances.

Finally, a fundamental principle of criminal law has long been that the government must prove that a defendant had the criminal intent to commit a crime.

Federal laws

This legal protection is now being eroded as Congress continues to churn out legislation in dramatic numbers. In the last quarter century, there has been onslaught of federal laws enacted that weaken the government’s responsibility to prove criminal intent. The increasing number of crimes and the absence of having to prove the willful nature of conduct is alarming.

Andrew Weissmann, a former federal prosecutor told The Wall Street Journal, requiring the government to prove a willful violation is “a big protection for all of us.”

No one would advocate for making it easier for a batterer, rapist or killer to get away with a grievous crime. However, lawmakers should not make it increasingly more difficult for an innocent person to protect his or her liberty interests and the right to mount a vigorous defense.

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