Presumption

We are saturated with news. It seems like there’s some new tragedy every day, some new horror story of Man’s crime against his fellows. We see it on the television. It’s on the plethora of news sites, and in our Feeds. We can’t escape it.

Since we are cornered by it, we must react to it. We cry. We mourn the victims, especially the children. We get angry. We demand justice. We demand legal protections against this happening again. We bicker and argue over every nuance that we can find, and some that we get from the imagination of fictional prose authors.

Then the news reports that the police are looking for someone in connection to the event. The police media correspondent uses words like “person of interest” and “possible suspect”. Within five minutes, we are posting pictures of this person using words like “freak”, “bastard”, “monster”, and “piece of filth”. We are posting demands for the person to be “fed into a wood chipper”, “drawn and quartered”, “hung from the tallest tree”, and “burned alive”.

I have another issue with that last one, but we can come back to that.

Who here remembers the Fifth Amendment? I’m looking for its exact wording, not the summary from Born Yesterday, and pretty much every single crime show out there. It has a lot going on in it, so I don’t blame you. I’ve looked it up for you though.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

How about the Sixth Amendment? I’ve got that one as well. Be mindful of the British spelling in the last sentence.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

What you have above is the basic outline for our criminal justice system. It has long been held that our criminal justice system also upholds the principle from the common law of the time of our founding. This being namely Ei incumbit probatio qui dicit, non qui negat, or rather, “The proof lies upon the one who affirms, not the one who denies”. The Supreme Court upheld this assumptive interpretation of the Fifth and Sixth Amendments in their ruling for Coffin v. United States, 156 U.S. 432 (1895). That is where we first see the phrase “presumption of innocence”. In layman terms, we have a system based on the principle of “innocent until proven guilty”.

You want to know what this means? It’s really quite simple. I almost don’t want to spell it out for you, because you are sure to think I’m taking the mickey out of you for doing so.

It means that until a person has been convicted by an impartial jury of their peers under due process of law, they are considered innocent under the law. Terribleness of the crime does not matter. Ethnicity does not matter. Religion does not matter. Suspicious activity caught on camera does not matter. Resisting arrest does not matter. Until the foreman of the jury pronounces them guilty, they are innocent.

With that out of the way, I would like to discuss the Eighth Amendment.  This one is really short. However, I know a lot of people who can only tell me the last half of it, so I’m quoting again.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Justice William Brennan defined cruel and unusual punishments in his ruling on Furman v. Georgia, 408 U.S. 238 (1972). He listed four principles with which we may determine if a punishment was cruel or excessive. He has some good ones, and they are as follows: a punishment by its severity degrading to human dignity, especially torture; a punishment obviously inflicted in wholly arbitrary fashion; a punishment clearly and totally rejected throughout society; and one that is patently unnecessary.

Let’s assume that you don’t need to have the arbitrary nature of the demanded punishments pointed out to you. Let’s assume that you know they are degrading. We’ll even assume that you know that getting creative with a criminal’s death is rather unnecessary.

Do you know how many states allow death by burning? If you answered zero, you are correct. Do you know how many states allow death by drawing and quartering? Yes, the answer is the same. I’m not touching death by wood chipper, but how about death by hanging? There are a grand-whooping two, both of which have it as a secondary method only. Washington does it only for an inmate who chooses it.

I don’t know about you, but I consider that clearly rejected throughout society.

I understand that you are angry. I understand that you are hurting. I understand that you want to get even with the perpetrator of whatever crime is making headlines at the moment. I really, really do. Trust me when I say that I find the molestation of a child, sexual assault of anyone, and massacres as horrendous as you do.

However, when we allow ourselves to become blinded by our desire for revenge we become blind to justice. When we become blind to justice that is when it gets lost. When injustice becomes law, rebellion becomes duty.

Justice is blind. You shouldn’t be.