Having been a long-time libertarian, the over-arching moral directive of my adult life has been the idea of voluntarism, i.e., that all forms of human interaction should be consensual. This emphasis on the primacy of consent in all social avenues often leads libertarians to hold positions that seem counter-intuitive to the uninitiated. Maybe my point is best summarized by the popular online libertarian joke/meme:

“I want gay people to be able to protect their marijuana plants with guns they bought untaxed.”

As a libertarian I am opposed to violent, coercive crimes perpetrated against innocent individuals, that includes both civilians and agents of the state. Like many libertarians, over the last few years I’ve been rather preoccupied with economics, Constitutional trespasses and naïve economic interventionism. However I’ve recently found something truly sinister; namely, the shift away from the libertarian presumption of innocence toward an authoritarian presumption of guilt. As such, this may be one of the most important things I will ever write.

I know, I know. We Moderns like to pride ourselves on our civility, and of course our technological and moral advancements. We tend to look down condescendingly upon our primitive ancestors, like the Aztecs, for senselessly sacrificing innocent human beings for seemingly inane purposes. But if we take a long hard look at ourselves, has anything really changed? I mean, the Inquisition, the Salem Witch Trials, and Jim Crow weren’t all that long ago. Is it any better that we Moderns now sacrifice our innocents in shabby business suits upon an altar built of a corrupt judicial system and ubiquitous television screens? It seems our scapegoating has been merely dressed up, adorned with fancy ink-horn terms that are really no less heinous. Historically, one of the greatest protections in the Western legal tradition against such atrocious scapegoating has been the simple notion of treating those accused of crimes as “innocent until proven guilty beyond a reasonable doubt”, i.e, the “presumption of innocence”. As we shall see, the presumption of innocence in America died some time ago, and sadly few even seem to have noticed.

A Brief History of the Presumption of Innocence

Leviticus 16 in the Bible describes a scapegoat as “a goat sent into the wilderness after the Jewish chief priest had symbolically laid the sins of the people upon it.” Concerns about scapegoating pop up from time to time in classics of American literature like The Scarlett Letter and To Kill a Mockingbird, perhaps because Americans must be reminded that “We The People” seem to have a difficult time applying the presumption of innocence in a uniform and principled manner. The Latin phrase:

Ei incumbit probatio qui dicit, non qui negat

…simply means that the burden of proof is on he who declares, not on he who denies. The 1895 U.S. Supreme Court case Coffin v. United States “traced the presumption of innocence, past England, Ancient Greece and Ancient Rome, and, at least according to Greenleaf, to Deuteronomy.” Under Justinian Codes, English Common law, and Anglo-American Common Law, the accused was always presumed innocent in criminal proceedings; proof was always the burden of the accuser.

Sir William Blackstone and Benjamin Franklin with variations of “Blackstone’s Ratio”.

Sir William Blackstone was seminal in concretizing English Common Law into the substantive (i.e., statutory) law we know today. His best known contribution, however, has come to be known as Blackstone’s Ratio and it goes like this:

“It is better that ten guilty persons escape than that one innocent suffer.“

Now not everyone is sold on Blackstone’s ratio. Authoritarian types like Pol Pot, Dick Cheney, and Otto von Bismarck have flippantly flipped the ratio. As legal scholar Alexander Volokh points out, it is believed Bismarck flat out said, “it is better that ten innocent men suffer than one guilty man escape.” When asked about the 25% of CIA detainees later proven to be innocent, including one innocent detainee that died of hypothermia while in CIA custody, Dick Cheney replied, “I’m more concerned with bad guys who got out and released than I am with a few that in fact were innocent.” American Supreme Court Justice Scalia seems much closer to Cheney than Blackstone unfortunately (and rather naive at math as this article shows). This authoritarian approach also has its own history which is beyond the scope of this article but readers might find interesting parallels between the Inquisition and The War on Terror as well as between the Malleus Maleficarum and the Patriot Act.

Blackstone by no means invented the ratio which bears his name but he did certainly popularize and institutionalize the concept. The notion has appeared throughout history, including even in the Bible:

Abraham drew near, and said, “Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? … What if ten are found there?” He [The Lord] said, “I will not destroy it for the ten’s sake.”

Genesis 18:23-32

The esteemed Hebrew scholar from the Middle Ages known as Maimonedes felt an innocent was worthy of a thousand guilty:

“It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.” – Maimonides, Sefer Hamitzvot

Sir John Fortescue, who was Chief Justice of the King’s Bench during the reign of the Henry VI felt that “one would much rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be condemned and suffer capitally.” During the Salem witch trials Increase Mather paraphrased Fortescue this way, “It were better that Ten Suspected Witches should escape, than that one Innocent Person should be Condemned.” As you might have noticed, the acceptable ratio of guilty to innocent punished varies from thinker to thinker. This concept is known as “n guilty men”. And when we finally remove the whole ratio business, then we are left with a more familiar phrase coined by the English lawyer Sir William Garrow (1760–1840), “innocent until proven guilty.”

So, Why Should Anyone Care About Innocents?

It is unnerving that I even have to ask the question but the question must be explicitly answered. Any child that has read Harper Lee’s To Kill a Mockingbird for school knows that under during the Jim Crow era, innocent African-American males had little to no recourse against the injustices such as false accusations that would result in mob lynchings. But do these school children know that today’s African-American male doesn’t have it easy either; contemporary America incarcerates black men at higher rates than South Africa during Apartheid. The problem is bigger than race though. Our rate of incarceration in America is an absolutely scandalous embarrassment, and we lead the world with 2.3 million people behind bars (and incarcerations have tripled since 1980 despite the fact that violent crime rates are way down). An even larger number (1 in 31 according to Pew Research) are under U.S. corrections custody either through incarceration, parole, or probation and a shocking 1 in 3 Americans have a criminal record according to the FBI. . Are these astronomical crime figures best explained by an inherently criminal American population (e.g., some have estimated that the average American commits three felonies a day) or instead do we perhaps have too many laws that are being adjudicated under this toxic presumption of guilt?

A Wikipedia graph of the incarceration rate under state and federal jurisdiction per 100,000 population 1925-2008 (omits local jail inmates). The male incarceration rate (top line) is 15 times the female rate (bottom line).

Experts believe that this nearly unfathomable rate is due to such factors as increased sentencing laws, the War on Drugs (which accounts for half the Federal prisoners) and rent-seeking by private prison industry lobbyists but I’d like to add another; the perverse incentives to shift from the presumption of innocence to the presumption of guilt in the American legal system. The presumption of guilt isn’t just a profitable enterprise for prison profiteers but for law enforcement agencies too. Television satirist John Oliver explains (and simultaneously skewers) the common practice of Civil Asset Forfeiture, aka “Policing for Profit,” in the United States in this worthwhile clip:

The perverse incentives to shift from the presumption of innocence toward the authoritarian presumption of guilt don’t just stop with for-profit prison lobbyists or law enforcement agencies policing for profit. Criminals have also seen how to profit from the shift toward presumption of guilt in our court systems with assorted extortion, bullying and blackmail schemes. For example, Long Beach High School football star Brian Banks had his rape conviction exonerated when his accuser was caught on tape admitting that she lied when she accused him (and she netted $1.5 million in a settlement with the Long Beach school district). That’s right, simply being accused of a crime as heinous as rape is enough for a conviction today, no evidence needed.

Of course most are familiar with the recent false allegations disaster involving Rolling Stone magazine and the University of Virginia’s Phi Kappa Psi fraternity but few know that there were mobs calling for the castration of these innocent young men, without any evidence! Of course, all too many personal injury lawyers are perversely incentivized to crush the civil rights of the innocent in search of legal fees and settlements. Kobe Bryant, David Letterman, Irish dancer Michael Flatley and scores of non-celebrities have been put through public humiliation and expense by the legal system because presumption of innocence isn’t profitable for both criminals and the American criminal justice system. As Dahlia Lithwick writes in the New York Times:

“This well-intentioned reform in our rape laws has led to two unappealing alternatives: Either the defendant’s legal presumption of innocence is flipped on its head, since rape shield laws unambiguously deny him access to potentially exculpatory evidence, or – as a practical matter – the woman’s sexual history goes on trial regardless, permitting humiliating public scrutiny often likened to a second rape.”

The tragic irony of being falsely convicted of rape is that both the false accuser and agents of the criminal justice system de facto become accessories to the rape of the innocent if the falsely convicted is raped while incarcerated. In my limited experience discussing this issue, it seems that the standard knee-jerk reaction of many is to assert that the number of those falsely accused of rape is very small, usually about “2%.” However, surveying the literature it is clear that this 2% figure is just as extreme as the figures that show false accusations accounting for 90% of reports. The rape statistics are perpetually clouded with controversy and here is an example why; there is real vagueness around the FBI’s use of the term “unfounded”:

“A certain percentage of rape complaints are classified as “unfounded” by the police and excluded from the FBI’s statistics. For example, in 1995, 8% of all forcible rape cases were closed as unfounded, as were 15% in 1996 (Greenfeld, 1997). According to the FBI, a report should only be considered unfounded when investigation revealed that the elements of the crime were not met or the report was “false” (which is not defined) (FBI, 2007 ).

This statistic is almost meaningless, as many of the jurisdictions from which the FBI collects data on crime use different definitions of, or criteria for, “unfounded.” That is, a report of rape might be classified as unfounded (rather than as forcible rape) if the alleged victim did not try to fight off the suspect, if the alleged perpetrator did not use physical force or a weapon of some sort, if the alleged victim did not sustain any physical injuries, or if the alleged victim and the accused had a prior sexual relationship. Similarly, a report might be deemed unfounded if there is no physical evidence or too many inconsistencies between the accuser’s statement and what evidence does exist. As such, although some unfounded cases of rape may be false or fabricated, not all unfounded cases are false.”

When we parse the numbers we learn there is wide variance of the figures on false accusations (lows of 1.5% in one study to highs of 90% in another). Feminists like to claim the low figures and MRAs (Men’s Rights Advocates) the high ones, both seemingly vying for the supremacy of their gender instead of caring for both the victims of rape and of false accusations of rape. A return to due process and the presumption of innocence would protect both victims of rape and victims of false allegations. Since misogyny and misandry are both wrong from the individualist perspective.

Rumney, Philip N.S. (2006). “False Allegations of Rape”. Cambridge Law Journal 65 (1): 128–158 . doi:10.1017/S0008197306007069 (taken from Wikipedia)

In a country where 43 percent of the post-conviction DNA tests proved the defendant’s innocence, and 15 percent were inconclusive we must ask ourselves “why?”

“Cui bono?” So who might benefit from the deliberate use of false accusations in light of the death of the presumption of innocence? Governments around the world and at all levels have also been caught silencing dissent using rape allegations (honey pots) and other tricks leveraging the presumption of guilt. It is a subtle way that governments can bypass due process and punish activists that have broken no laws or whistleblowers exposing crimes perpetrated by government agencies. This article by Glen Greenwald, et al. describes the tactic succinctly:

“The version of a “honey trap” described by British cyber spies in the 2012 PowerPoint presentation sounds like a version of Internet dating, but includes physical encounters. The target is lured “to go somewhere on the Internet, or a physical location” to be met by “a friendly face.” The goal, according to the presentation, is to discredit the target.”

For a more complete listing of extra-legal methods (e.g., honey pots, etc.) used to discredit critics of government please see this longer article by Greenwald. It may alarm you to learn that it isn’t just the super-spy agencies that have been leveraging the presumption of guilt though. If you’re in America, then your local neighborhood police detective has been using an interrogation method known as the Reid Technique.

False Confessions and False Convictions

Developed by former Chicago cop and polygrapher John Reid, the interview/interrogation technique that bears his name has been most recently criticized by Alberta Provincial Court Judge Mike Dinkel this way:

“Although there is no law prohibiting the use of the Reid Technique, I find that it has the ability to extinguish the individual’s sacred legal rights to be presumed innocent until proven guilty and to remain silent in the face of police questioning.”

What this does, in essence, (for the statistically minded among you) is minimize Type II errors (false negatives) while tolerating Type I errors (false positives). This flips the “n guilty men” concept on its head making it congruent with those authoritarian approaches of Dick Cheney, Pol Pot, and Bismarck mentioned at the beginning of this article. The New Yorker magazine recently ran a feature story with this disheartening takeaway:

Of the three hundred and eleven people exonerated through post-conviction DNA testing, more than a quarter had given false confessions—including those convicted in such notorious cases as the Central Park Five.

Interesting that this parallels the 25% figure that Dick Cheney felt ok with, only the “collateral damage” in this study aren’t foreign terrorists, they are innocent American citizens that have had their lives and the lives of their families utterly destroyed by abuses of the Reid Technique within the American criminal justice system! It isn’t controversial to say that the psychological torture of the Reid Technique has been deliberately foregone in other countries like England and Denmark in favor of the PEACE technique, due to the epidemic of false confessions yielded by the Reid Technique.

In addition to alternatives like the PEACE technique there are also advocacy groups saving innocent lives. The Innocence Project is one of them. Sadly, nobody knows for certain how many innocent individuals are currently in US prisons. One study very conservatively estimated that an amazing 10,000 innocent Americans are falsely subjected to the horrors of prison each year, and the authors of the study admit that their figure is most likely low. The Innocence Project puts it this way:

“We will never know for sure, but the few studies that have been done estimate that between 2.3% and 5% of all prisoners in the U.S. are innocent (for context, if just 1% of all prisoners are innocent, that would mean that more than 20,000 innocent people are in prison).

“More broadly, we know that innocent people are often identified as suspects by law enforcement and that DNA testing often clears them before they go to trial, but that DNA testing is impossible in the vast majority of criminal cases. In approximately 25% of cases where DNA testing was done by the FBI during the course of investigations, suspects were excluded by the testing. That doesn’t mean we believe 25% of convictions are in error, but when coupled with the fact that DNA testing is only possible in 5-10% of all criminal cases, it shows that science cannot always clear innocent suspects, which can result in wrongful convictions.”

At least 20,000 innocent individuals in prison! This is precisely why prescient legal thinkers like Maimonedes, Fortescue, Mather, Blackstone, Garrow, Franklin, et. al. persistently pushed for the idea of the presumption of innocence. If this is as troubling to you as it is to me, then you probably don’t even want to know how many innocent people are sentenced to death each year in America. However, what is perhaps the most frightening piece of information in this entire article is that now it seems that we can’t even trust our own criminal “justice” system to provide evidence correctly.

Recently both the Justice Department and FBI formally acknowledged that for more than a two-decade period nearly every examiner (96%) in the FBI forensic unit overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, including 32 death sentence cases (14 of which have been executed or died in prison).

Source: Washington Post

Representatives from the Innocence Project and National Association of Criminal Defense Lawyers had this to say:

“’These findings confirm that FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecutions’ case,’ said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. ‘While the FBI and DOJ are to be commended for bringing these errors to light and notifying many of the people adversely affected, this epic miscarriage of justice calls for a rigorous review to determine how this started almost four decades ago and why it took so long to come to light. We also need lawmakers in Washington to step up and demand research and national standards to prevent the exaggeration of results in reports and in testimony by crime lab analysts.’

“Norman L. Reimer, Executor Director of NACDL added, ‘It will be many months before we can know how many people were wrongly convicted based on this flawed evidence, but it seems certain that there will be many whose liberty was deprived and lives destroyed by prosecutorial reliance on this flawed, albeit highly persuasive evidence. Just as we need lawmakers to prevent future systemic failures, we need courts to give those who were impacted by this evidence a second look at their convictions.’”

It isn’t just the reliability of hair analysis that has come under scrutiny but the whole of forensic “science”, many of the evidentiary methods used are very flawed (read this and this) too.

Your DNA Can and Will Be Used Against You…

Counter to what is presented on all the popular weekly CSI cop shows, in the real world the FBI and Department of Justice have come clean about the very real perils of forensic “science”. Now, with the normalization of the presumption of guilt (i.e., the secularization of “Original Sin” that fueled the Inquisition’s Malleus Maleficarum) within our criminal “justice” system, a dash of scientism (i.e, forensic pseudo-science), and the collection of your ambient house dust ANY innocent person can be found “guilty”, including you!

One of the newest fads in forensic science is known as “Touch DNA”. It operates off the premise that since human beings shed skin cells they can be transferred to objects through touch. These skins cells are known as “epithelial” cells and the Y-STR genetic material is analyzed to make a match. Unfortunately, your average American may not realize that DNA testing does not determine how the DNA was actually deposited onto an item of evidence and whether it was deposited directly, or via secondary transfer through a third-party. To further the controversy surrounding the reliability of this new Touch DNA is the fact the 80% of house dust is comprised of human skin cells, and those skin cells contain contaminating DNA! Here’s the science you don’t see on CSI:

The discovery that human DNA is detectable and measurable in dust is a first, say researchers who report their findings in Forensic Science International (DOI:10.1016/j.forsciint.2008.01.016). “People have quantified the amount of DNA in dust many times before, but no one had looked before for human DNA,” says Bonnie Brown, co-leader of the team at Virginia Commonwealth University in Richmond. http://www.newscientist.com/article/mg19826584.200-telltale-dna-sucked-out-of-household-dust.htm

And:

“The implications of this study are twofold. First, the presence of dust in evidence can be a significant contamination source in forensic investigations because the human DNA component is of sufficient quality and quantity to produce allele calls in STR analysis.” http://www.fsijournal.org/article/S0379-0738%2808%2900044-3/abstract

While this may be the first you’ve ever heard of this, the phenomena well known to those that study these issues:

“Is secondary DNA transfer a possibility in this case?

Another common question in regards to touch DNA analysis is, “Is it possible that my client’s DNA arrived on the item of evidence via secondary transfer?”. In other words, could someone’s DNA be found on an item even though they never actually touched that item? Based upon several recent studies, the answer is, yes, this is indeed possible.

Secondary transfer can be from:

1. person to person to object – I shake your hand and my DNA is transferred via primary transfer to your hands. You then pick up a knife and transfer my DNA to the knife (secondary transfer)”

Forensics expert Michael J. Spence, Ph.D. blogged about the real tragic implications of this problem as early as January 2012:

“In 1910, Dr. Edmond Locard, professor of forensic medicine at the University of Lyons, France, was the founder of the world’s first forensic science lab. This great scientist was also the first forensic scientist to formally emphasize the importance of transfer events in the investigation of crimes.

Dr. Locard’s incredible intuition evolved into the time-tested Locard Exchange Principal, stating that “Every contact leaves a trace.” Locard’s principal became universally accepted over forty years BEFORE James Watson and Francis Crick proposed the first accurate model of the DNA double helix. The exchange principal was also widely embraced over seventy years BEFORE Colin Pitchfork became the first person to be identified and convicted of a crime, using the power of DNA typing.

As an insult to the celebrated history of Dr. Locard’s principal, *some* modern day prosecutors—with the support of their crime lab analysts—attempt to downplay the plausibility of DNA transfer events. Despite the fact that the crime scenes are crawling with CSI’s who enthusiastically center their efforts on Locard’s teachings, some courtroom comedians are allowed to drone on with their ridiculous folly of reasoning. JURORS PLEASE TAKE NOTE: TRACE MATERIAL EXCHANGE EVENTS ARE NOT THE PRODUCT OF OVERACTIVE SCIENTIFIC IMAGINATIONS.

… How many falsely accused individuals have been wrongfully imprisoned as a consequence of a few hundred cells finding their way to an incriminating location?” http://dna-criminal-justice.blogspot.com/2012/01/criminal-trial-controversies-dna.html

Spence raises a particularly frightening notion here, the idea that modern day prosecutors are in cahoots with their crime lab analysts. As turns out, they are. Journalist Radley Balko illuminates this point in a recent article in The Washington Post:

Crime lab analysts are supposed to be neutral parties interested only in getting the science right. But the system is often structured in a way that makes them part of the prosecution’s “team.” In fact in many jurisdictions, crime labs actually get paid per conviction, not per analysis — about as clear a perversion of objectivity as one can imagine. Of course, the pressures and incentives needn’t be that explicit. For example, just knowing extraneous details about a case can produce cognitive bias, even in as accepted a field as DNA analysis.

Hopefully you understand why you should have grave cause for concern that your skin cells (DNA) can easily appear on a piece of evidence that you never touched. Just recently, DNA company Ancestry.com gave the Y-STR DNA of their clients to Idaho police WITHOUT A WARRANT and linked an innocent man to a 20 year old cold case via this forensic pseudo-science. This sort of traumatizing experience can, and very likely may, happen to you or someone you care about.

Presumption of Innocence, R.I.P.

Don’t expect to see these controversies revealed on your weekly CSI cop show. The facts will only spread if we talk and share them. The bottom line is this: if you are falsely accused of a crime in modern America, there is a strong likelihood that you will be presumed guilty by the criminal “justice” system. Additionally, there is a palpable risk that you may be falsely convicted too. Our astronomical incarceration rate only seems to confirm this tragedy.

A corrupt criminal justice system, for-profit prison lobbyists and policing for-profit laws, prosecution of falsely accused without evidence, interrogation methods like the Reid Technique, negligent forensic pseudo-science and other perverse incentives are all complicit in the murder of the noble idea of the presumption of innocence in America. But what is even more worrying is that the concept of “innocent until proven guilty” is dying in the macrocosm of American culture too. Our tabloid, screen addicted culture, all too eager for the next celebrity scandal or TV cop drama, has marginalized the best our culture has to offer, the innocent. I would be lying if I didn’t tell you that I have grave concerns for the future of all of us, especially our children, if we don’t begin championing the presumption of innocence again immediately, and with everything we’ve got at the very top of our lungs.