THE COUNSELOR=S CORNER

You have got to be kidding. By the slimmest of margins, a 2 to 1 decision, the United States Ninth Circuit Court found earlier this month that the county jail in the City of Phoenix could no longer webcast the temporary residents of their jail (also known as inmates) as they were sleeping or being booked or fingerprinted. Of course, this was being done by the Ainfamous@ Maricopa County Sheriff who has been featured on A60 Minutes@ for having prisoners work on chain gangs, eat green bologna, and wear pink underwear. Sheriff Joe Arpaio=s latest move was to install four web cameras in his jail to attempt to embarrass those who had been arrested for prostitution, spousal abuse, or drunkenness. These cameras were installed in July of 2000 at which time the sheriff announced that Awhen these johns are arrested, they can wave to their wives on the camera.@ He then created a website entitled Crime.com. On this website those who chose to visit were invited on a tour entitled AYou Are Busted!@ As bad news tends to travel fast, this website and tour attracted 6 millions hits within a short period of time. Not just the wives were doing the viewing as web users came from far and wide including countries such as Germany, Sweden, and Great Britain. In fact, Crime.com was overwhelmed to the point where the site had to shutdown after this lawsuit was filed as the number of hits increased and the site was not able to handle the increase in attention. The shutting down of the website did not end the lawsuit as the sheriff indicated that if the courts ruled his way, the web cameras would be turned back on and the website would getting going once again.

The sheriff=s contention was that by putting a camera on these people it would deter other people from committing these crimes as those on camera would certainly feel a great deal of shame and this would cause people to think twice before committing crimes such as these.

Fortunately, order was restored by the Ninth U.S. Circuit Court of Appeals on Friday, August 6th of this year as Judge Richard Paez held that the humiliation of being watched by millions of people as they slept, were booked and finger printed Ais incalculably greater than having jail guards watch the same procedure.@ No kidding. The judge added that AWe fail to see how turning pre-trial detainees into the unwilling objects of the latest reality show serves any of these legitimate goals.@

The dissenting Judge Carlos Bea would have voted to uphold this new version of candid camera. Judge Bea did not find this shaming of those who are arrested to constitute inappropriate pre-conviction punishment.

How about the fact that people are deemed innocent before proven guilty? What possible benefit does shaming the possibly innocent provide to our society? If those who are arrested are presumed innocent until and unless proven guilty, why should their punishment begin before they have had their day in court? And shouldn=t the punishment consist of what a judge or in some states a jury deems appropriate, rather than a pink underwear promoting sheriff who has enjoyed his 15 minutes of fame to the point where he is trying to stretch it into 20. As both a criminal defense attorney and a psychotherapist I find this behavior to be outrageous. If someone is convicted of a crime then I am in favor of the court imposing whatever penalties are provided for by law; however, these people are mere arrestees. Whenever I or any other criminal defense attorney tries a case, in part of the introduction of the case to the jury, the court tells the jury that, in effect, an arrest means nothing. The jurors are told that an arrest and the fact that charges have been brought are in no way indicators of guilt. Jurors are told that their decision is to be based on the sworn testimony given by all witnesses on either side of the proceeding, both prosecution and defense. This sheriff would rather begin the punishment process at the time of the arrest.

The sheriff=s second argument was that these web cams serve the public good in that they show people what jail operations look like. Fortunately, Judge Paez rejected that claim as well noting that Ain short, the web cams are not reasonablely related to a non-punitive purpose.@ Again, no kidding. The sheriff=s job is to uphold the law and enforce the law, not to create new twisted forms of punishment. I think we would all be best served if Sheriff Arpaio stops trying to get himself publicity for being a tough guy and goes back to doing what he is suppose to do. I may not be in favor of the pink underwear, green bologna, and chain gangs, however, at least then he is messing with people who have already been convicted. What about those who end up being found not guilty of prostitution, drunkenness, and spousal abuse? Why on God=s green earth should they have been subjected to world wide humiliation for something that they did not do? I would suggest that this was an extremely poorly thought out idea and if the sheriff=s lawyers do decide to appeal, I would hope that the United States Supreme Court will do the right thing and keep the cameras turned off.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger & Grover, and a psychotherapist at the Foothill Centre for Personal and Family Growth. He is a past professor at the USC College of Law. He can be reached at (818) 244-8694 or at www.charlieunger.com.