The Pernicious Perp Walk

What the Dominique Strauss-Kahn case reveals about spotlight-hungry prosecutors


Editor's Note: This column is reprinted with permission of the Washington Examiner. Click here to read it at that site.

I have to admit, I found the Dominique Strauss-Kahn (DSK) rape case irresistible. It stroked so many of my political prejudices: distrust of globalist bureaucrats, disdain for "public servants" living high on the hog, and residual annoyance with the French.

In DSK, the sanctimonious former head of the International Monetary Fund (IMF), you had the Platonic form of the "champagne socialist," a character whose flaws would be too over-the-top even for an Ayn Rand villain.

He was the perfect metaphor for the IMF, that "fund for nation-rape," as my colleague Doug Bandow describes it, "an institution of privilege that routinely acts to the disadvantage of the vulnerable."

Here was a jet-setting champion of the poor who was charged by New York authorities with forcibly helped himself to the help in his $3,000-a-day luxury hotel suite—brutally raping a poor immigrant maid from West Africa. You can't make this stuff up.

Or… maybe you can, because last week the case against DSK imploded due to serious doubts about his accuser's credibility. A key piece of evidence was the maid's taped phone conversation, a day after the alleged rape, with a boyfriend being held on drug charges: "Don't worry, this guy has a lot of money. I know what I'm doing."

On Friday, recognizing that "the circumstances of this case have changed substantially," a New York judge released DSK from house arrest.

Back in May, when New York law enforcement paraded DSK before the cameras, hands cuffed behind his back, the French were outraged. "Incredibly brutal, violent and cruel," France's former justice minister gasped.

Irritating as it might be to admit it, the French have a point. The "perp walk"—in which suspects are ritually displayed to the media, trussed up like a hunter's kill—has become common practice among prosecutors. But it's a practice any country devoted to the rule of law should reject.

"Perp walks are pernicious devices," writes law professor Ernest F. Lidge, "they humiliate innocent defendants, taint the jury pool and titillate the public." Too often, they're "used by prosecutors to build careers."

I'll say. As a spotlight-hungry U.S. attorney in the '80s, Rudy Giuliani used this tactic to great effect in his war on insider trading. In 1987, he had three investment bankers cuffed at their desks and frog-marched out. One case was dropped for lack of evidence, and the other two defendants had their convictions overturned on appeal.

Ambitious prosecutors often opt for the public perp-walk even when defendants offer to turn themselves in. Legal challenges rarely succeed. Federal courts only find violations the Fourth Amendment when they're transparently staged for the benefit of the media, as in a 2000 case where a defendant already in custody was taken out of the station and marched in again for the local news.

Anything that serves "a legitimate law enforcement purpose," loosely defined, generally passes muster, even if the suspect isn't dangerous and the perp walk mainly serves as a photo-op.

But even if the courts will let prosecutors get away with ritual humiliation of people who haven't yet been convicted, as professor Lidge argues, the gratuitous perp-walk should be considered a serious violation of prosecutorial ethics.

Even when I was sure DSK was guilty, I was perturbed by New York Mayor Michael Bloomberg's question-begging comment: "if you don't want to do the perp walk, don't do the crime."

Finding out whether the accused did the crime is what we do at trial. If he's innocent, then he's been publicly humiliated by agents of the state for no good reason. And even if he's guilty, he deserves to have his case tried in the courts, not on cable news.

Gene Healy is a vice president at the Cato Institute and author of The Cult of the Presidency: America's Dangerous Devotion to Executive Power (Cato 2008). He is a columnist at the Washington Examiner, where this article originally appeared. Click here to read it at that site.

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  1. Healy’s political prejudices were not unresponsive.

  2. But it’s a practice any country devoted to the rule of law should reject.

    Well then I guess we’re stuck wiht it.

  3. Unfortunately, the other option is also ripe for abuse; i.e. suspects being spirited away on some extraordinary rendition-like flight. His or her detainment kept in the dark for his or her “privacy”.

    At least the perp walk is visible to the public. Furthermore, I think the average person is more rhetorically sophisticated than Healy and/or most French pundits give them credit for. I’m skeptical if the perp walk really has any effect in tainting potential jurors.

    1. This potential juror might get tainted upon seeing an over-the-top perp walk as evidence the defendant is less or not guilty.

      (Hope I didn’t just disqualify myself for any future jury service.)

    2. To an extent; I suspect the people who would be influenced by the perp walk footage correspond closely to those who believe that they wouldn’t arrest someone if they weren’t guilty.
      However, the very term “perp walk” is itself loaded – shouldn’t it be suspect walk? And I do find the increasing footage of them, as well as the increasing display of mug shots, etc. to be troubling.

      Here’s my compromise – I’ll accept the video of suspect walks and the publication of mug shots when it becomes always legal – in every state – to film on-duty police under any circumstance.

      1. That sounds like a very reasonable compromise.

      2. No No, they only want YOUR interactions taped, how are they supposed to plant evidence on you, or abuse their authority if you’re taping them? Come on, you gotta see it from their side!

  4. I agree. Bloomberg gives it away, and undoubtedly reflects the view of everyone in power – if arrested, your guilty.

    But what is much more outrageous is the complete lack of oversite, review, investigation, in case, after case, after case where the convicted is found innocent. But our vaunted “legal system” is probably the most incurious institution in the history of the plantet (maybe tied with the inquistion) – the question never uttered, as if equivalent to musing who farted at the Thanksgiving feast, as how it is that with all our rights, so many innocent people end up serving decades in prison…

    1. dan, you remind me of the Fells Acres Day Care case in Massachusetts. The state supreme court rejected the release of the clearly innocent Gerald Amirault because the people of the state deserved “finality”. Saying pretty much flat out, no more digging into this case to sort out how it went so horribly wrong, with no regard for Amirault’s ruined life.

      1. Don’t forget, Martha Coakley lobbied the governor to oppose his release, even though all of the testimony against him, including the rather fantastical story that he inserted a butcher knife into a 4-year-old’s rectum was proven false.

  5. “If you don’t want to do the perp walk, don’t do the crime.”

    It’s the authoritarian mindset in one sentence.

  6. A view a “perp” walk for what it is: a sign that a grand jury has found reason to indict.

    It is the fault of the observer if they confuse being charged with being guilty.

  7. Even absent the media perp walk, they’re handcuffing people unnecessarily. They’ll say it’s for personnel safety, but if you go back to the 1960s at the earliest, it was not routine practice to handcuff people who turned themselves in or who were otherwise detained under circumstances you wouldn’t describe as their being apprehended. One commenter on a phone-in radio show who used to be a policeman said he thought that in the 1970s or 1980s police adopted the practice by imitating practice on TV shows!

    1. Like all forms of institutional feature creep, no cop or bailiff wants to be on the hook if the perp goes apeshit and injures (or kills) someone. The first time the otherwise non-violent offender lunges out and does mayhem, everyone’s going to be asking, “why wasn’t he in cuffs?”

      1. Regarding feature creep, I see your point. It’s the reason someone touched my cock at the airport this last weekend.

        1. eeuuww!

        2. They were following procedure. The Union was quick to point out that there was no provision for not touching your cock in their procedures.

          So the procedures have to change, and more training is required.

  8. But perp walks (assuming they don’t turn out to be total disasters) make for great background video for those all-important ads during political campaigns!

    “As a prosecutor, Candidate X saved your children from predation by locking people in cages for not renewing their license plates on time! VOTE for him!”

    1. The more you learn, the more you realize that prosecutors should be barred from running for another office for, what, 10 years ? after they leave office.

      1. I’m iffy as to whether prosecutors should be elected at all rather than appointed to a term not to exceed the term of office of the person who appointed them.

        If they are elected, they are vaguely accountable to the people. However, the people are also demonstrably stupid and will reward ambitious prosecutors who recklessly inconvenience and destroy people’s lives to keep their Win-Loss record looking good.

        1. I guess you have to decide if justice is a popularity contest.

          1. I need smarter citizens. Everyone gets 2 Balko articles a day until a proper level of scepticism regarding police and prosecutors is achieved.

            1. And nobody who uses the British spelling of skepticism gets to vote, either. Here in ‘Murca we gots rules about spelling, boy.

              1. Can’t I indulge my inner Anglophile just a little?

  9. There may be a useful trickle-down effect here.

    When they do “perp walks” for rich defendants, they can justify themselves by saying, “well, we do perp walks for poor defendants, and we don’t want to discriminate!”

    Which prompts the question, “why are you doing perp walks for *poor* defendants?” The answer, of course, is to look good on TV, and poor people aren’t going to make an effective protest, because they’re poor.

  10. It just occurred to me how bogus the argument was that they had to act quickly to get him off that airplane lest he leave the country. Either he did it or he didn’t. If he didn’t, then so what, he leaves the country. And if he did, then so what, he left the country! It’s not like he was getting away with the jewels or the microfilm or whatever. What’d they want to do, put him in jail? Whether he’s in jail or away, he poses no threat to people in the USA, and having him out of the country is cheaper than having him in jail. If he came back, then they could have legal proceedings.

    1. Um, you have to arrest him to have a trial so you can decide if he did it or not. And you can’t arrest him or have a trial (or force him to show up for one) if he’s not in the country.

    2. I don’t understand this logic. Do you think foreign nationals should be de facto immune from prosecution? Because that’s what refraining from arresting them amounts to.

      1. Do you know what else makes you “immune” from prosecution? Pleading guilty and getting exiled to prison. Getting exiled to another country seems to be strictly better on the theory of justice being advocated (viz that the purpose of criminal justice is to physically prevent perpetrators of crimes from having access to the citizens of the polis by which they could be done harm), in that it does a better job of shielding that set that are themselves in prison in addition to all the others.

  11. It’s totally a media driven thing. Once television became politically important, perp-walks became politically powerful tools.

    It’s the same factor behind things like politicians getting their hair dyed and needing to be good-looking.

  12. Most women soon after filing a rape charge will be partying. The real sufferer will be the guy that spends years in prison. Who is the real victim the woman that has a slight bruise on her vagina or the guy in prison? The punishment should fit the damage done and that is called justice.

    1. Most male prisoners soon after filing a rape charge will be holding a cell block party. The real sufferer will be the 300 lb. rapist who spends even more years in prison. Who is the real victim the man who had his ass torn in two or the rapist in prison? The punishment should fit the damage done and that is called Hammurabi’s Code.

  13. The punishment should fit the damage done and that is called Hammurabi’s Code.

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