Originally Published: 7/29/2010
REASONABLE SUSPICION or PRESUMED INNOCENCE: Regarding the Arizona Assault on Rule of Law
By Gregory Wood
“Reasonable suspicion” is the astonishing phrase upon which Arizona's recent racist profiling law has been based. “Reasonable suspicion” is not reasonable. It aims to displace “presumed innocence.” “Presumed innocence” is a democratic standard in law because the burden of proof is structured so that law enforcement is required to establish “probable cause” to justify its actions.
These phrases, most people know, have to do with bedrock constitutional law. Considering that the terms “reasonable” and “suspicion” are vague, note that it leaves interpretation to the enforcing officer and, therefore, it shifts the “burden of proof” away from clear standards of police protocol that can be interpreted, if need by, by the courts.
What constitutes “reasonable” and “suspicious” behavior is intentionally vague such that it is subject to interpretation. Therefore, it can scarcely be contested. Reliance upon such words to guide law enforcement undoes previously clear standards of fairness in protocol required of police. Such arbitrariness confounds the standards of proof, in effect confusing our courts about “due process.” That change leaves little recourse to anyone abused by it. Everyone should note that. It becomes more difficult for individuals to hold the police accountable for their abuses of law enforcement. It victimizes brown people and uses them to confuse the court about standards of proof. Therefore, it weakens democratic law as exercised by the court.
An overarching issue to consider is that any government, if it aims at strengthening democratic responsiveness, must be concerned about who polices the police. The powerful tend to accrue power and, therefore, don't have to be scrupulous about exercising it. Concerned people might cite the phrase “certain unalienable rights” in our Declaration of Independence. It acknowledges that all people must be FREE in their homes and persons from “unreasonable search and seizure” to be able to foster “life, liberty, and the pursuit of happiness.”
Changes in law that blur due process provisions in the courts threaten everyone. “Reasonable suspicion” ends up really being about presumed guilt! That change in police enforcement and in the courts can only support tyranny.
Gregory Wood is the owner of Forest Books in San Francisco.
© The Issue Wonk, 2010