BY: Dhanshitha Ravi and Rishabh Guha
Perp walks are commonly a part of the practices adopted by American Law enforcement agencies wherein the police officer escorts the arrested suspect deliberately to enable the media to film the procedure. The word ‘perp’ is used to connote the perpetrator, who has committed a crime even though under usual circumstances, the one who is being perp-walked is a suspect. Ironically, even though this infamous exercise is shunned in democracies, the United States being one of the largest democracies in the world, has adopted this practice and vouches for its merits.
The root of this age-old practice in the US arose due to the prohibition on prior restraints under the First Amendment of the US Constitution, attributable to New York City, where the suspects were handcuffed or clad in prison uniform and transported to the police station. However, the most fundamental conflict arises whether the concept of perp walks contravenes the tenets of the criminal justice system.
JUSTIFICATIONS OF PERP WALKS AND EXAMINATION OF THE CRIMINAL JUSTICE SYSTEM
The rationale (or the lack of it) behind ‘perp walks’ is substantiated on the grounds of increasing accountability of police action, increasing involvement of the public in the actions of the justice system, boosting public confidence in the police, and deterring potential offenders. From a normative standpoint, it also exposes the suspect’s physical condition that can be beneficial in pre and post-detention scenarios.
The thumb rule devised by the court is that the government must have a legitimate objective in conducting perp walks that must be distinctly identifiable, without which the perp walks become mere media stunts.
The supreme court has set a plethora of precedents to lay down that to achieve the ends of crime deterrence, the means should never involve the castigation of a suspect who is given the leverage due to the principle of presumption of innocence. The only acceptable premise would be creating deterrence through post-conviction. Promoting such parades enforces a sense of bias on the part of the police since they decide the guilt or the innocence for the media. Apart from this, perp walks malign the character and dignity of the suspect who has a chance of being acquitted but is already perceived as an offender by the community. Under the veil of enforcing justice, the accused is made the object of schadenfreude and his name is ultimately besmirched.
The 4th Amendment guarantees the right to privacy and the blanket to be protected from unreasonable searches and seizures. Media “ride-along” also trespass into the privacy of an individual, since the suspects are being filmed usually in their houses during seizures as opposed to being paraded in public, but ultimately has the same result of public humiliation. The cases of Ayeni v. Mottola and Wilson v. Layne laid down that since a home embodies the epitome of privacy, the procedure followed must traverse within the territories of reasonableness and not be excessive. But an unsettled debate about the contingent nature of privacy as to whether an individual voluntarily exposes himself to the public falls short in respect of perp walks since they are unwillingly being brought into the public under duress and the location-based privacy protection fails.
Under the 5th Amendment, suspects have the right against self-incrimination and double jeopardy. Perp walks seriously inflict some irreparable damage on the substance of double jeopardy since this is a degradation ceremony taking the pretext of a shaming sanction. Shaming sanctions were very common in the American colonial era and also comprised physical tormenting of effigies to supposedly ‘soothe public outrage.’ Even though the gravity of perp walks is much lesser, the amount of mental agony that is caused will amount to punishment, and will satisfy the test laid down in Bell v. Wolfish which ascribed that treatment of a suspect will constitute punishment if there was an ‘intent to punish’ or if there is a justification to link the treatment and the purpose. To support this, Koestenbaum explains that “Even if the ordeal is merely mental, the body itself gets dragged into the mess” making it a form of punishment. If the suspect is convicted, it would be tantamount to him serving two sentences, dished out by – one, the media, and second, the Court of law. This would theoretically be classified as double jeopardy. Since a perp walk is primarily contrived, the media is usually buzzing around the scene of the arrest, which coerces them to make prejudicial statements (sometimes innocently so), leading to self-incrimination and violation of the right to remain silent.
The most significant landmark judgments regarding perp walks are Lauro v. Charles that categorised perp walks as ritual degradation and purported suspect rights in “not being displayed to the world, against [one’s] will, in handcuffs, and in a posture connoting guilt.”
Caldarola v. Country of Westchester established that while resorting to practices like perp walks if the government has a legitimate objective to be achieved, it should follow a balancing approach to guarantee all the rights of the suspect ingrained in the criminal justice system.
CASE STUDY OF LAGOS, NIGERIA
The Lagos State Government and the Lagos State Police Command are at loggerheads over the constitutionality and legality of publicly parading suspects before the media. As much as it appears to be outrightly discriminatory, the police contend that they are empowered by the Nigeria Police Act 2020. Ironically, section 37 of the very Act upholds the rights of a suspect to be treated with dignity and not be subjected to degrading treatment. The police actions are harboured behind the absence of an explicit ban on public parading of suspects before the media. However, the police conveniently disregard the series of judicial decisions disapproving of this action. This lacuna, addressed via an amendment of the Lagos State Criminal Justice Law, has created friction between the Government and police forces.
Perp walks are used as a tool to gain political mileage, in whitewashing the efforts of keeping crime under control, and further used to incite the public to partake in mob justice.
The lack of specific legislation addressing this concern cannot justify such a demeaning act, as held in Saude v. Abudullah. Sections 17(2)(b), 21(a), and 34(1)(a) of the Nigerian Constitution follow a basic premise – that human dignity should be upheld, promoted, and must not be subjected to inhumane treatment. The Constitution invalidates such degradation ceremonies.
These perp walks are generally conducted even before an investigation into the crime has begun. Every suspect enjoys the benefit of the doubt or, in legal parlance, ‘presumption of innocence until proven guilty,’ protected under Section 36(5) of the Constitution and Article 7 of the Banjul Charter (African Charter on Human and Peoples Rights Act). Their liberty and privacy are protected under this provision. Nevertheless, this shaming sanction is practised unfettered, leading to the derogation of their inalienable Right to human dignity.
In any event, this tasteless act in no way contributes to the overall coherence of the investigative procedure. Instead, it mars the procedure with bias, and worse still, it defames the suspect’s reputation as held in Ndukwem Nice v. AG, Federation, and such defamation is said to be irreversible due to the absence of any media coverage if a suspect is exonerated thereby undermining the principles of justice. The visible shackling, parading in handcuffs, portrays a sense of guilt and wrongdoing. This has a prejudicial outcome and is an infringement of their fundamental right to fair hearing, enshrined under Article 36 of the Constitution and undermines the presumption of innocence. In Ottoh Obono v. Inspector. General of Police, the Court condemned the parading of suspects before the media and awarded exemplary damages upon being exonerated.
Often referred to as the ‘functional equivalent of an interrogation,’ suspects are subjected to taxing interviews gheraoed by the media and press in the garb of cross-examination sanctioned by the police. Confessions extracted before the social prosecutors under undue pressure, albeit have no evidentiary value, affect the judiciary’s independence.
The Administration of Criminal Justice Act 2015 provides a dignified procedure of arresting suspects vide sections 5 and 8, which disallows unnecessary restraint and inhumane treatment. Nigeria is a signatory to the International Covenant on Civil and Political Rights and Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Even with laws and conventions in place, the police continue their archaic practices unabashedly. Worse still, even if it is assumed that such practice is constitutional, it is conducted only for the marginalized criminals accused of petty crimes, whilst high-ranking officials accused of siphoning off state funds bribe their way out.
All this is set to be corrected with the newly enacted Lagos State Criminal Justice Law, 2021, adopting the 2015 Administration of Criminal Justice Act. Section 9(a), among other reformative provisions, has finally answered the prayers of human rights activists and lawyers, explicitly and absolutely outlawing the parading of a suspect before the media.
By understanding the legal precepts of the criminal justice system, it can be deduced that the concepts of perp walks are pernicious to the suspects and their guaranteed rights that uphold criminal law. The status in Lagos concerning the introduction of the new Amendment by the Lagos government is a harbinger of better rights for arrested suspects who were being subjected to perp walks by usurping the fundamental principles. The panacea to this problem will be better awareness, and international cognizance giving rise to legislation making perp walks reprehensible to prevent crossing the Rubicon.
Cite as: Dhanshitha Ravi and Rishabh Guha, ‘Perp Walks: An American Custom’s Rebirth in Lagos’ (The RMLNLU Law Review Blog, 15 October 2021) <https://rmlnlulawreview.com/2021/10/15/perp-walks-an-american-customs-rebirth-in-lagos/> date of access