VIEWSrnDeformations of JusticernThe Presumption of Innocence, Double Jeopardy, and Other Fairy Talesrnby Philip JenkinsrnIf a U.S. administration formally attempted to establish an authoritarianrnpolice state, its efforts would almost certainly encounterrnbitter and even violent resistance; recent experience,rnhowever, has shown that remarkably authoritarian and unconstitutionalrnmethods can be established without provoking seriousrnprotest, provided thev are introduced piecemeal and justifiedrnby the rhetoric of good intentions. In the last 15 years,rnnotions of justice in America have repeatedly been subvertedrnand distorted, usually through what might be called the politicsrnof the ultimate evil: Yes, of course, we believe that individualrnrights and due process are essential to democracy, but what yournnaive citizens fail to realize is that major concessions must bernmade in order to fight the imiquely menacing and difficultrnproblem of [insert emotive issue here]. Whether we are dealingrnwith drugs, child abuse, terrorism, nonpayment of child support,rntobacco, or handguns, this particular threat is so urgent,rnand so challenges our conventional legal mechanisms, that libertiesrnmust be sacrificed to achieve a higher good. Wliat honestrncitizen could disagree, at least without seeming to connive atrnthe wrongs in question? Though this attitude is certainly notrnnew to the Clinton administration, it flourished uniquely in thisrncommunitarian environment: This was the administration thatrnsuggested that illegal immigration must be combated by requiringrnall employees to posse,ss identit)’ cards, encoded with thosernvastly informative microchips. Identity cards would also havernbeen the basis of the failed healthcare reform package of somernyears back: One way or another, under whatever excuse, therncards are coming.rnWhile assaults on liberties have been numerous and multifaceted,rndie most dangerous of all have focused on legal rightsrnPhilip Jenkins is Distinguished Professor of History andrnReligious Studies at Pennsylvania State University.rnand judicial process. Through a sequence of “ultimate evils,”rnwe have undergone a silent and scarcely noticed revolution inrnwhich such basic ideas as the presumption of innocence havernbeen scattered to the winds. And so has the right to trial: not thernright to a fair trial, but to the formality of a trial as a prerequisiternfor the infliction of serious penalties. While civil libertariansrnhave been fighting persistentiy to protect the rights of suspectsrnand defendants in criminal cases, they have scarcely noticed thernmassive shift of official regulafion and sanctions out of the scopernof criminal law altogether and into the area of administrativernlaw and civil litigation. How have we come so far, and why didrnmost of us fail to notice it? Why are we not panicking?rnMany of the legal abuses of recent years have involved the violationrnof “due process,” and it is useful to define exactiy whatrnthat concept has entailed: If the ideas seem painfully obvious, itrnis all the more striking that they should be flouted daily with sornlittle objection. The ancient legal tradition is that punishmentrnshould be inflicted only for acts, not for beliefs or tendencies,rnand that wrongful acts should be carefully and specifically definedrnin order to limit the exercise of arbitrary power. In the Anglo-rnAmerican world, proper procedure requires a formal hearingrnin which both prosecution and defense have a fullrnopportunity to present evidence, and in which the accused hasrnthe presumption of innocence. The Enlightenment traditionrnfurther demanded that punishments should be proportional tornthe crimes committed and that they should be clearly stated sornthat citizens would know precisely the risks they were runningrnin undertaking certain types of conduct. Throughout, the guidingrnprinciples are clarity, predictabilitv, and rationality, togetherrnwith a healthy suspicion that the state is likely to abuse anyrndiscretionary powers with which it is entrusted.rnAnd yet, if a contemporary federal court decided to enforcernthese principles strictly, it would be viewed as launching a legalrnJULY 1999/13rnrnrn