How Can US Jurisprudence Be Considered Fair When Individuals Are Punished Before Trial?

khobragadeThose that continue to subscribe to the notion that US jurisprudence is the best system in the world should consider the following. The corner stone of the US legal system is the notion of the “presumption of innocence”. In order to subscribe the notion that the accused are presumed innocent it is important to accept that punitive action against an accused violates this doctrine. In “Presumption of Innocence is a Fallacy in American Jurisprudence: The Aaron Hernandez Case” I showed how the presumption of innocence is a false premise. Now consider the following two latest examples.

India-US Relations: The Khobragade Affair

Last week one of India’s diplomats was arrested and charged with visa fraud. Devyani Khobragade, who was India’s deputy counsel general at the time, was arrested in New York City. Ignoring for the purposes of this post, the issue of diplomatic immunity and US-Indian relations, let’s focus on the notion of the “presumption of innocence”.

According to government and new media sources, Khobragade was arrested and charged with a crime. As part of the process, Devyani Khobragade was stripped searched before being put in a holding cell. Keep in mind that Khobragade was charged with a non-violent and not drug related crime therefore the notion that she had contraband on her person is wrong. Furthermore there is no indication that Devyani Khobragade was uncooperative during the arrest and therefore she should not have been considered a danger to herself or others.

According to the US Marshals Service, a strip search is part of the arrest process for all arrestees.

Remember, the arrest is supposed to be a process of charging an individual with a crime and making sure the individual will be available to answer the charges. Under the doctrine of “presumption of innocence” there should be no punitive sanction against an arrestee.

I believe any normal minded person would agree that the indignity of a strip search is punitive in nature.

Accepting that a strip search is punitive in nature than it should stand to reason that a cavity-search would be even worse. In the case of Devyani Khobragade there are conflicting reports on whether a cavity search was performed on her. However all reports agree that she was stripped searched as part of the arrest process.

Jane Doe Cavity Search Lawsuit

On December 18, 2013, lawsuit was filed by a 54-year old US Citizen. The individual has asked the court to allow her to remain anonymous because of the “sensitive nature of the events”. According to the lawsuit, “Jane Doe” was returning from Mexico on December 8, 2012 where a drug sniffing dog alerted towards her after she had been selected for further inspection by Customs and Border Patrol agents.

According to the plaintiff, for six hours she was subjected to being stripped searched, an observed bowel movement, cavity searches and a CT scan. After various invasive searches of her body at the local hospital, the plaintiff was released from custody without any charges filed.

This type of degrading treatment by border patrol agents on the US-Mexico border is whispered about regularly with many individuals too afraid to report or unknowledgeable enough on their rights to pursue the matter in the courts.

Although the lawsuit is in its infancy we should accept that the following are factual elements of the case. First, that the plaintiff is a US citizen whose body was searched for contraband and after a period of time she was released without charges being filed. Although I have no doubt that the narrative of the invasiveness of the plaintiff’s body is accurate I have not seen evidence to substantiate them. However for the plaintiff to have gotten to the point of filing this lawsuit I believe that she was humiliated and violated by the judiciary in order to ascertain whether she had contraband on her body.

Consider these two recent cases as you think about the cornerstone of the US judicial system; the presumption of innocence. I believe we can all agree that invasive body searches during an arrest or in search of a crime are punitive in nature and therefore are not presuming innocence.

The question then becomes how can anyone defend the US judiciary as one of the best in the world when its cornerstone is shown to be false?

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