Lies the government told you

by Andrew P. Napolitano

  The War on Big Government

  The war on drugs has been a disaster for America. Using drugs, killing babies in our wombs, and taking our own lives are all actions committed against our bodies. Yet, while the government permits us to have abortions and commit suicide, and lets us get high on one chemical, alcohol, it prohibits us from getting high on other chemicals, which it calls “drugs.” Does that make any sense? Everyone should have the right to make choices about his or her own body, period.

  While on a larger scale the war on drugs is about wasteful government expenditure and an infringement on our Fourth Amendment rights, on a more personal level it is about the choices individuals make concerning their own bodies. We should be allowed to control what enters our bodies. If someone very badly wants to ingest a chemical substance into his body, he should be able to do so regardless of any government law; and thousands do so, every day. According to Professor Murray Rothbard:

  Propagandize against cigarettes as much as you want, but leave the individual free to run his own life. Otherwise, we may as well outlaw all sorts of possible carcinogenic agents—including tight shoes, improperly fitting false teeth, excessive exposure to the sun, as well as excessive intake of ice cream, eggs, and butter which might lead to heart disease. And, if such prohibitions prove unenforceable, again the logic is to place people in cages so that they will receive the proper amount of sun, the correct diet, properly fitting shoes, and so on.21 (emphases added)

  Furthermore, we know from the utter ineffectiveness of Prohibition that drug laws will never serve as a deterrent to drug use. Will Rogers opined that “[i]nstead of giving money to found colleges to promote learning, why don’t they pass a constitutional amendment prohibiting anybody from learning anything? If it works as good as the Prohibition one did, why, in five years we would have the smartest race of people on earth!”22 Rogers was being facetious, but he certainly has a point.

  Generally, someone who seeks to disobey laws that punish victimless crimes does not look up the jail sentence for the crime he is about to commit, so why criminalize drug use, and give drug users and sellers long stints in prison? Do these laws really change people’s mind-sets? Hardly. There is no logic here, and billions of dollars per year are wasted because of this lack of foresight. On this issue, Milton Friedman wrote, “Every friend of freedom . . . must be as revolted as I am by the prospect of turning the United States into an armed camp, by the vision of jails filled with casual drug users and of an army of enforcers empowered to invade the liberty [and property] of citizens on slight evidence.”23

  Finally, America’s children have also often fallen victim to the drug war. Getting in trouble with the law at a young age follows many youngsters into adulthood. These children are plagued with emotional baggage and possibly a criminal record, simply for trying to satisfy their curiosities. If we really want to raise healthy, happy children, it is up to families, peer groups, and communities to restrict harmful behavior—not the government. Close-knit relationships and good examples reach much further than the government ever could, and they do not cost taxpayers a dime.

  We must stop this foolish war, and stop letting the government talk us into it year after year, election after election. As we have learned throughout this book, the government does two things very well: it scares us to death, and it spends our money. The war on drugs is no different than any other government scam employed to steal our money. When will there be a “War on Big Government,” in which the taxpayers get money from Washington to keep the federal government from spiraling further out of control?

  Lie #12

  “Everyone Is Innocent Until Proven

  Guilty”

  One beautiful day in Washington, D.C., a twelve-year-old girl named Ansche Hedgepeth was arrested by an undercover transit officer on her way home from school. She was handcuffed, taken to a juvenile processing center, fingerprinted, photographed, and detained for three hours. Ansche was not arrested for murder, or assault, or theft; rather, she had the audacity to eat a French fry on the subway. And the United States Court of Appeals for the D.C. Circuit sanctioned her three-hour incarceration.1 (This case, which would have normally been brought in a District of Columbia city court, was filed in federal court in Washington because the girl’s mother claimed that the Washington transit authority had violated her daughter’s right to equal protection under the law.)

  If children on the subway are subjected to such unconstitutional conduct, imagine what adults face when police officers have the right to lock them up and treat them as guilty before even the semblance of a trial is held. And then imagine a court system that denies the presumption of innocence until the jury is impaneled. And then imagine judges who permit it; and a government that denies it.

  Probably the least questioned and most believed government lie is also the most famous maxim of the American judicial system: that all persons are presumed “innocent until proven guilty” beyond a reasonable doubt. This presumption of innocence is a standard taught to the youngest of school children and which the government hails as a founding principle of justice because it presumes that, like the oft-repeated Lord Justice William Blackstone ratio, “Better that ten guilty persons escape than that one innocent suffer.”2

  Of course, “innocent until proven guilty” has been at the core of Western judicial systems since biblical times.3 We are indoctrinated so thoroughly that the average person rarely considers whether the phrase is true or not. Yet when we carefully examine the system, we find that it does not function as the government would like us to believe. Beneath the surface of various platitudes, the falsity of the presumption of innocence becomes readily apparent.

  Presuming the Presumption

  The presumption was first recognized by the United States Supreme Court in Coffin v. United States (1895), in which it stated that “the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal [law] system”4 (emphases added). Somehow though, this undoubted law of presumed innocence has been tossed to the wayside in the courts, though the government continues to teach it in its classrooms. But what was once elementary is now a complicated and convoluted field of the law.

  In 1951, in the case of Stack v. Boyle, the Supreme Court held that “the traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction . . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”5 Yet less than twenty years later, President Nixon signed a bill into law that allowed judges to consider the factor of “danger to the community” in noncapital bail cases, with the Department of Justice “arguing that the presumption of innocence was merely a rule of evidence with no application to pretrial proceedings”6 (emphases added). Apparently, even though one is “innocent until proven guilty,” what the government hides is that this principle applies only during the trial, and that the government believes that defendants are “guilty until trial,” if convenient for the government, under the auspices of community safety.

  Does that make any sense? Before you’ve even had a chance to go to trial, pretrial proceedings, which contain much lower protections of the innocent than those of a trial, can drop what is often cited as the most elementary principle of the justice system. Astoundingly, what the Supreme Court had just reaffirmed in Stack v. Boyle as a traditional freedom that secured the presumption of innocence was now being legislatively eroded on the claim that such grand principles do not apply between an arrest and the beginning of the trial, a period of time that is almost always much longer than the trial itself.

  Even if we were to accept that people the government deems “dangerous” should be kept separate from the community, they do not deserve to be treated like convicted criminals. Yet even though the gove
rnment has often claimed that they are not, this is not the reality. Once in jail, there is no distinction made between the “innocent” and the guilty. Instead, the indicted-but-not-convicted prisoners are mixed in with those convicted “in overcrowded jails . . . regularly subjected to degradations and restrictions amounting to punishment.”7

  Imagine that, punishment beginning before you have even had a chance to prove your innocence (even though the government should actually be proving your guilt). Is that consistent with the presumption of innocence? The U.S. Court of Appeals for the Second Circuit, in Wolfish v. Levi (1978), certainly did not think so. It held, in this class action suit brought by all persons detained at New York’s Metropolitan Correction Center, that the “restrictions” imposed on innocent defendants were unjustified and violated “their right to be treated as innocent until proven guilty.”8

  Unfortunately, the Supreme Court of the United States chose to approve the actions of the government, while attempting to maintain the myth that one is innocent until proven guilty. On appeal, then-Justice Rehnquist wrote that the presumption of innocence did not have any application before trial.9 The result of this, noted by Justice Thurgood Marshall, was effectively the same as if the Court had chosen to decree that the “presumption did not exist at all.”10

  These cases, which assume that once you are arrested you will be considered guilty until your trial starts, began the resulting erosion of the presumption of innocence. And while schoolchildren are still taught that this maxim is true (at least in government-owned schools), the government continues its lie, claiming that it has not abridged this right and justifying itself with the constant “for the public safety” argument. These “supposedly innocent” people cannot be judged as such because they may present a danger to society. And whether or not the argument has justification, its outcome still results in people—like little Ansche Hedgepeth—who should be considered innocent under our system being adjudged as guilty and punished before they have the chance to defend themselves. In essence, these people are considered “guilty” until they have a chance to prove their innocence at trial.

  If our courts can lose sight of such a presumption of innocence and continue to authorize the police to arrest you at any time for even the most minute crimes, like not wearing a seat belt while parked, or juggling cigar boxes on a sidewalk in Times Square in New York City without a license, or being quietly drunk in a bar in the State of Texas recently, then our rights extend only as far as the police subjectively allow.

  Guilty Until Proven Insane

  While pretrial presumptions of innocence are allowed to be thrown out the window, the government reminds us that during trial, one is still “innocent until proven guilty.” Strangely enough, this, too, is also not always true. In certain states, when a defendant in a criminal case asserts the insanity defense, the burden of proof as to his insanity rests with the defendant.11 Given that insanity means that you are legally, if not factually, innocent—because you could not have the mental capacity required by the law to commit the crime—then forcing the defendant to prove his own insanity (and thereby his innocence) is a direct violation of the presumption of innocence, which is supposed to permeate our entire justice system. While the Supreme Court in 1895 stated that in a federal prosecution the burden would be on the prosecution to prove that the defendant belongs “to a class capable of committing crime,”12 some courts still allow the presumption of sanity, and therefore guilt, to stand unless the defendant affirmatively proves his insanity and therefore his innocence.

  Such conduct was upheld by the Supreme Court in 1952, in the case of Leland v. Oregon. The Court held that an Oregon law requiring that the defendant prove his insanity beyond a reasonable doubt was not a violation of the Fourteenth Amendment, even though it essentially required him to prove his innocence.13 This is especially shocking considering that, unlike other states that only required the defendant to prove this by a preponderance of the evidence, Oregon required proof beyond a reasonable doubt. This is the same burden, the same obligation of coming forward with evidence, the same level and quality of proof as the government must meet in its case-in-chief in order to obtain a conviction. This is also an utter rejection of the presumption of innocence.

  What is most shocking about such a requirement is that it shifts the burden of proof from the prosecution to the defense. In every criminal trial, the prosecution has the burden of proving every element of the charged crime—every component of guilt—beyond a reasonable doubt. The defendant does not have to examine any witnesses or present any evidence. The defendant does not have any burden; he is not required to prove anything at all. This is the meaning of “innocent until proven guilty,” that the defendant is presumed innocent and the prosecution must prove to the jury that he is guilty beyond a reasonable doubt.

  Therefore, when the courts enforce a requirement that the defendant prove his insanity, this means that they are presuming him sane, thereby also presuming an element of guilt. If the jury takes as a given any element of guilt, and the defendant needs to prove to the jury that that element is not so, that is a perversion of our system of justice. The courts should never sanction such a requirement. Yet some do, and the Supreme Court has allowed them that discretion. And still we believe that the presumption of innocence is holding strong?

  Discarding Actual Innocence

  Sadly, the Supreme Court has also held that once an innocent man is found guilty by a jury, he cannot appeal on the basis that he has proof of his actual innocence. The court held that the Due Process Clause did not require that “every conceivable step is taken, at whatever cost, to eliminate the possibility of convicting an innocent person.”14 So while the basic premise of our system is preached to be that no innocent man be jailed, no matter how many guilty go free, apparently this does not apply when the cost of ensuring this gets too high.

  The idea of a cost-benefit analysis applied to innocents in the justice system is not the most heartwarming of thoughts. Leonel Torres Herrera, who was convicted of killing a police officer and once convicted of that death, pled guilty to the death of another, is the example of where such a path will lead. After being sentenced to death, Herrera appealed based on “actual innocence.” In effect, he provided proof that he had not committed the crime, including the affidavits of a lawyer, a former classmate, and a former cellmate of his brother’s, all three of whom swore that Herrera’s brother had confessed to them of committing the crime. He also had a statement from his nephew attesting that he had witnessed his own father kill the police officers. This was the evidence that Herrera presented in order to argue that he should not be executed. None of the five people had reason to lie. Yet the Supreme Court decided that this was not important and that “actual innocence” was not a matter for appeal, since the defendant could instead work to get a pardon.

  Imagine being jailed, about to be executed for a crime you did not commit, and having to depend on an elected official to take mercy on you, even when this will ensure that he is portrayed as “soft on crime.” This is what happened to Herrera. Though he appealed to the governor, he was denied and the heartless, lawless future President who denied an innocent man his life was then-Governor George W. Bush of Texas. Only four months after the Supreme Court ruled that actual innocence does not matter, Leonel Torres Herrera was executed. His last statement was, “I am innocent, innocent, innocent. Make no mistake about this; I owe society nothing. Continue the struggle for human rights, helping those who are innocent . . . I am an innocent man, and something very wrong is taking place tonight. May God bless you all. I am ready.”

  How can we say that the idea that “it is better for guilty men to go free than for one innocent man to be punished” is still a mantra of our justice system, if a man who has definite proof of his innocence cannot be saved by the highest court in the land? The justices of the Supreme Court did not seem to have much of a problem permitting the execution of a man, even when confronted with proof of his actual
innocence, justifying their actions by stating that the courts would be too busy if they were forced to review every case. But this is not every case: Herrera brought forward more than doubt about his guilt; he brought actual evidence of innocence. And if that is the case, how can anyone tell him that he deserves to die? Of course the court also noted that assuming that “in a capital case, a truly persuasive demonstration of actual innocence made after trial would render the execution of the defendant unconstitutional . . . the threshold showing for such an assumed right would necessarily be extraordinarily high.”15

  First the court held that killing an innocent man is not unconstitutional, then it declares that even if it was, the man must prove his innocence under the most extraordinary of standards of proof to be able to invoke the natural right to live.

  Government Lies About Guilt

  The Herrera v. Collins decision is especially frightening when considered in the light of the falsely convicted persons who have been proven innocent through DNA analysis. It only shows how indisputably false is the idea that our system protects the innocent. And while the government can continue to preach what it wants us to believe, it is widely apparent that the innocent, especially after they have had their day in court, no longer matter, even when they have incontrovertible evidence of their innocence.

  The Innocence Project, a nonprofit organization created by Barry Scheck and Peter Neufeld, strives, through DNA analysis, to free the innocent who have been wrongly convicted and incarcerated. Unsurprisingly, one of its discoveries was that governmental misconduct was a factor in 50 percent of their first seventy-four DNA exonerations. The majority included suppression of exculpatory evidence by the police and prosecution, knowing use of false testimony, coercing witnesses, and fabricating evidence.16 These are the actions of the same governments whose schools so strongly claim to believe in “innocent until guilt is proven.”