Law Review: Guilt and arrest fused to eliminate presumption of innocence

The notion that an individual is presumed innocent until proven guilty is a guiding principle of the American justice system, reported The Crime Report. But the way people both inside and outside the system treat those who are arrested calls that principle into question—and complicates reform efforts, according to a forthcoming paper in the Alabama Law Review.

The paper’s author, Anna Roberts, a professor at the Seattle University School of Law, calls the phenomenon a “fusion” of arrests with guilt in the perceptions of many of the justice system’s key players, as well as the media, and she argues that it has affected every phase of the justice process.

“The stage that is supposed to lie between arrest and adjudication—that period of diligent investigation, zealous representation, exploration of defenses, and possible dismissal—has too often collapsed in our…understandings of the criminal legal system,” writes Roberts,

On average, there are 11 million arrests in the U.S. every year. Few of these arrests lead to actual convictions, but many individuals experience negative consequences as a result of contact with the justice system, in ways similar to those actually found guilty, according to Roberts.

For example, she writes, the legal repercussions of an arrest can include a permanent record accessible to police and employers, threats to child custody and the initiation of deportation affairs. People who are arrested and stand trial but found not guilty can still be plagued by negative social stigma, and find themselves suspended, fired or turned down for future jobs.

Just as significantly, the “fusion” of arrests with guilt weakens public support for policing and sentencing reforms, added Roberts, noting that when individuals are detained for long periods of time before a trial, those who assume an arrestee is initially guilty may think of this simply as “punishment paid in advance,” and are less likely to care about issues like pretrial diversion.

Similarly, the association made between arrests and guilt also affects how the public views a defendant’s right to legal counsel, the paper said.

When arrestees are viewed as guilty individuals, concern about due process or improvement of defense representation, particularly for indigents, may be seen as just a “waste of time” or an unethical way to get a client off the hook.

Roberts also argues that the “fusion” can lead to misleading data about recidivism.

She contends that the assumption of guilt is baked into the statistics, both in primary and secondary sources. In part, this is because it is easier to measure initial arrests than to collect follow-up data on complex or lengthy court outcomes. In recidivism data collected, “arrests can be—and are—used as a proxy for either initial criminal behavior or subsequent criminal behavior,” Roberts writes.

Roberts cites the United States Sentencing Commission’s report on federal child pornography offenses, in which “known recidivism” is defined to include arrests even where the outcome of the case is unknown.

Instead, she proposes, recidivism should only be measured by known convictions, because the data is then used to shape incarceration reform programs and policies, such as what “rehabilitative or reentry programs should be funded or offered, how probation and supervised release should function” and “whether diversionary and treatment programs are working.”

In the courthouse, judges also frequently use arrests to gauge an individual’s risk of committing further offenses, regardless of whether he or she was found guilty. That translates into disproportionately high bail amounts and more people detained pending trial, she writes.

Prosecutors, meanwhile, act under the public mandate to “do justice.” When arrestees are presumed guilty, “justice might well be seen as identical to the pursuit of convictions…,” leading to inflated charges and stymying efforts to curb prosecutorial misconduct, writes Roberts.

Given widespread and pervasive tendency to view arrests as guilt, “it may be unsurprising how halting reform has been of policing problems,” she adds, “including racially disparate policing and arrests,” and perverse incentives to arrest such as overtime pay or prospects for job advancement.

Accentuating this fusion, many believe that police have the leading role in “bringing the guilty to light,” rather than the fact-finders of judges or juries, the paper says.

In another example, she points to how arrests can become a public performance staged by police and the media─from “perp walks,” the parading of arrestees through public spaces, to 30 seasons of the reality police show “COPS”—which reinforce the presumption of guilt. Roberts also takes the media to task for reporting police accounts of arrests in a manner that appears to prejudge the guilt of an individual.

Roberts offers a few explanations to the fusion of arrest with guilt, including the reliance on plea bargaining, and the use of diversion programs to classify guilty individuals (regardless of actual criminality).

The complete article, entitled “Arrest as Guilt,” can be downloaded here.

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