Monday, December 17, 2012

An International View on Preventing the Gun Massacres

Constitution in the National Archives
Photo by Mr. T in DC.
The recent tragedy in Connecticut is heartbreaking. As an American parent living in France, I am relieved that France has only 0.06 people per 100,00 murdered by handguns every year, compared to the 2.97 rate in the United States. Guns are popular in France and we have the twelfth highest per capita gun ownership in the world, but the US handgun murder rate is almost 50 times that of France. This and numerous other bits of data show that there's not a clear correlation between the prevalence of guns and the prevalence of murder. This is a complicated problem and there is no clear solution, though doing nothing is also not a solution.

Given how divisive the issues involved are, is there anything we can reasonably do to make the situation better? Yes there is. In fact, I propose two solutions. One is pretty solid, but would likely face serious legal challenges. The other is less solid, but could probably be implemented quickly.

Given the well-known role of media in reporting on the shootings in Aurora, Clackamas, Columbine, and many other areas, it's often argued that much of the violence is copy cat in nature. In fact, the relationship between media and violence is fairly well studied (and controversial) and we definitely know that there are many copy cat murders either planned or committed. Many of us can name the murderers in these shooting sprees, but how many can name the victims? As Morgan Freeman (didn't) point out, a copy cat killer can "be remembered as a horrible monster, instead of a sad nobody." If "death by cop" is your preferred means of suicide, you might just find that compelling. And while we're talking about that, watch this:




So for the media to be truly ethical, one might argue that they shouldn't publicize the names of the killer or make them famous. However, with profit-driven media that's awfully hard to stop. Further, with freedom of speech, that's awfully hard to stop. Even if some news organizations do the right thing, some other news organization is going to publicize the names of the alleged perpetrators and get the ratings and thus the revenue.

France doesn't do media circuses the way the US does because the French courts and media do things a little bit differently. The Code de procédure pénale of French law states:
Toute personne suspectée ou poursuivie est présumée innocente tant que sa culpabilité n'a pas été établie. Les atteintes à sa présomption d'innocence sont prévenues, réparées et réprimées dans les conditions prévues par la loi.
Before I translate, let me just say that it's a pretty shocking concept, one which you may have some time wrapping your head around. French law basically says "you're innocent until proven guilty." Holy merde! Who would have thought that? (Actually it's an oft-repeated canard that in France, you're guilty until proven innocent, but that hasn't been true for centuries.)

Obviously, that text goes on for a bit longer, so what exactly does it say?
Any suspected or accused person is presumed innocent until he is found guilty. Damage to the presumption of innocence is prevented, remedied and punished as provided by law.
"Damage to the presumption of innocence"? What does that mean? While I confess I am not a lawyer, here's a recent news article which might shed some light. It's about the bombing of a kosher supermarket here in Paris. The alleged perpetrators are allegedly linked to "Islamist rebels in Syria."

In short, that scant bit of information is highly suggestive of a terrorist bombing here in Paris. Big, big news. That would be a huge media circus in the US. And who are the suspects? Who knows? The suspects are never named. They're just called "suspects" or "assailants". While the French system isn't perfect, you, as a suspect, won't find your photos on the front pages of papers. It's illegal to publish photos of you in handcuffs or police custody. That would (duh)  damage the presumption of innocence. Thus, there is no prejudicial perp walk coordinated between the police and the media. When it's time for a trial the police bring you discreetly into the court house through a quiet side entrance.

The media circus? We just don't have it over here.

Let's compare and contrast. Do you remember Richard Jewell? I didn't even have to look that name up because the US media burned it into my brain. He discovered a bomb on the 1996 Summer Olympics grounds, alerted police, helped evacuate, and was basically a hero.

And was immediately eviscerated by the press. Here's a snippet from his obituary:
Other media, to varying degrees, also linked Jewell to the investigation and portrayed him as a loser and law-enforcement wannabe who may have planted the bomb so he would look like a hero when he discovered it later. 
The AP, citing an anonymous federal law enforcement source, said after the Journal-Constitution report that Jewell was "a focus" of investigators, but that others had "not yet been ruled out as potential suspects." 
Reporters camped outside Jewell's mother's apartment in the Atlanta area, and his life was dissected for weeks by the media. He was never arrested or charged, although he was questioned and was a subject of search warrants.
We now know that an extremist named Eric Rudolph was guilty of this crime. Jewell's life was destroyed and he sued and settled with multiple media organizations for the damage they did to his reputation.

Or consider the Central Park Five rape case. A woman was raped in Central Park and several black and latino men were rounded up and had confessions coerced out of them by the police. Given the media frenzy before and during the trial, there was simply no way those men could have gotten a fair trial and they spent over a decade in prison before it was discovered that they were innocent: the original perpetrator confessed, the police coercion was unmasked and DNA evidence also helped.

I'll bet most of you know who this is.
How many of his victims would
you recognize?
So not only does identifying alleged perpetrators possibly incite copycat crimes, it has great potential to destroy the innocent via "trial by media". Hell, even if someone is responsible for the crime they're arrested for, don't they have a right to a fair trial? If I were sitting on the jury of the perpetrator of the Aurora massacre, while I, in theory, would think he deserves a free trial, I would also be thinking this bastard deserves to rot in prison for the rest of his life. I don't have much sympathy for murderers and I would never be allowed to be a juror on his trial. I can't imagine who could be an impartial juror in trials like this.

How can we claim that people are innocent until proven guilty if they're going to get labeled a suspect by the police, arrested, dissected in the media, paraded in a prearranged perp walk and then tried in the newspapers by the prosecutor and sit before a judge who has to worry about being reelected? Is there a possibility that this just might damage their presumption of innocence? That this just might impact their ability to receive a fair trial?

So here are two ways we can not only reduce copycat crimes, but also improve the integrity of the US judicial system at the same time.

First, make it illegal for the media to name suspects.

Before you start yelling "First Amendment", I hasten to remind you that in the US, yelling "fire" in a crowded movie theater is illegal because it represents a "clear and present danger" (the law on this topic has since been refined). In fact, the US limits speech for:
  • Incitement to crime
  • False statements of fact
  • Obscenity
  • Child pornography
  • Fighting words and offensive speech
  • Threats
  • Speech owned by others
Could we have another exception for the case of naming a suspect in a trial? Many of the restrictions on speech are specifically crafted to reduce gross harm to society. I can call you a jerk, but I can't issue a fatwa calling for your death. So what's the gross harm in naming a suspect? (note: gross harm is my term, not a legal one) Let's read part of the text of the Sixth Amendment to the US Constitution (emphasis mine):
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 ...
Well, that's interesting. An unrestricted First Amendment creates a potential conflict with the Sixth Amendment. There is no way that the alleged Aurora murderer is going to have an impartial jury. When exercising one right guaranteed by the Constitution destroys another right guaranteed by the Constitution, there's a problem that wouldn't be unreasonable to address.

There's plenty of precedent for restricting the First Amendment when there's clear harm demonstrated. And frankly, I doubt you'd find too many people arguing that it's ok to distribute child pornography or issue fatwas inciting your followers to murder someone. So if an unrestricted First Amendment threatens the rights provided by the Sixth Amendment and it might help to incite the murder of twenty innocent little children and six adults in a small Connecticut town, I think I'm OK with saying that defendants can't be named by the press.

But I mentioned two ways of addressing this problem. The second way is to tell the police they can't name suspects unless failure to do so demonstrably harms their case. Right off the bat, the police would be in an uproar. I'm sure some of them like calling the newspapers and TV stations and telling them when a suspect will be humiliatingly paraded around in handcuffs. Also, if the police can't find a suspect, naming the suspect is probably needed to ensure the suspect is caught.

We could also forbid the perp walk and generally direct the police to avoid any media which might reasonably impact a defendant's Sixth amendment right to a fair trial. Is this perfect? Nope. But perhaps we could at least start changing the culture around how defendants are treated and making it more socially unacceptable to name them. They get a fairer trial and Eric Harris and Dylan Klebold don't become household names. It's a win-win situation.

Well, except the media want their sensationalism and the police probably wouldn't enjoy being told how to handle their investigations. Oh, and pitting the First and Sixth amendments together won't win a huge amount of sympathy due to many people thinking "bastard's who get arrested deserve what they get."

But as I pointed out in my personal blog, the right to bear arms is a contentious issue and nobody's doing a damned good job of addressing the problem, but by better protecting the accused, we can perhaps sidestep a debate that we know is probably not going to be won and maybe, just maybe, start chipping away at the culture of violence in the US.

So love 'em or hate 'em, let's borrow une page from the French playbook and skip the media circus.

As an added bonus today, while I've explained that posting photographs of suspects in handcuffs or in police custody is illegal in France, I didn't explain their mechanism for not printing suspect's names.

That's because there isn't one. It's part of French culture. A friend of mine who works for French Television explained it to me this way: "when we cover a story, we ask ourselves what is the minimum amount of information needed to tell the story." She explained that though the culture is changing, the French media generally respect the presumption of innocence and don't name suspects. Obviously that's not going to fly in the US now, but could we try to inject this into US media culture? In the journalist code of ethics it's written "Balance a criminal suspect’s fair trial rights with the public’s right to be informed." Journalists already know they're a threat to a suspect's fair trial. Perhaps it's time to have them revise their ethics code.