Innocent? Prove it.

Last I checked, the U.S. Constitution mandates that criminal defendants are presumed innocent, and guilt must be proven by the state. It may not say it in the plain text, but people who read the Constitution for a living swear it’s floating around somewhere in the “penumbra” of the 5th, 6th, and 14th Amendments. In any case, the Supreme Court agrees. In fact, the presumption of innocence is “axiomatic and elementary.” “[I]ts enforcement lies at the foundation of the administration of our criminal law.”

There are several reasons for this, some of which are purely practical. One of these reasons is that it is no small feat to prove actual innocence. Another is that the average criminal defendant doesn’t have the resources bestowed upon state and federal governments to cover court costs. So the burden of proof is on the party with the resources. This makes sense.

So why do innocent people have to prove their innocence in order to clear their records of false charges?

I came across a short editorial in the Sacramento Bee this morning arguing that they shouldn’t, and I tend to agree. The editorial traces the story of Eric Warren, who spent 53 days in jail after being charged with a series of similar crimes in the area, following a phone tip and shaky other-race IDs by five witnesses. He maintained his innocence throughout, and a substantially similar crime was committed in the same area while he was locked up, suggesting someone else was behind all the crimes.

Ultimately Mr. Warren was released, after the eyewitness and other evidence quickly fell apart. Prosecutors admit to having “substantial doubts” about his connection to any of the crimes.

But,

If a mistake was made, what is the remedy for Warren? His family is out thousands of dollars in legal bills. Warren is out of jail, but he’s not free from the effects of what appears to have been a false accusation. For example, if asked on a job application, “Have you ever been arrested?” must he answer “yes” — a devastating admission for any job-seeker and particularly so for a young African American man? A declaration of “factual innocence” would officially expunge Warren’s arrest record. But such a declaration requires Warren to petition the court himself, incurring yet more legal costs. That’s unfair.

Not to mention extremely difficult. Even if the witnesses ultimately admit to being unable to make a reliable ID, that’s still short of factual innocence. If Mr. Warren’s only alibi is that he was at home sleeping at 4a.m. on the night of a particular crime, as most of the other innocent people in Sacramento likely were, he’s going to be hard pressed to affirmatively prove that he wasn’t out committing those crimes. Barring definitive DNA evidence, new eyewitnesses, or a confession by the actual perpetrator, Mr. Warren is left with an arrest record because the government made a mistake. The Sacramento Bee offers a better solution:

If a mistake, no matter how innocent, was made by witnesses, by police or by prosecutors, the system owes Warren an apology. A declaration of “factual innocence” is the one meaningful apology available to him. He should not have to pay for it.

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