Pilloried in the Press: Rethinking the Constitutional Status of the American Perp Walk

Abstract

The perp walk is the practice, common among some American law enforcement agencies, of “walking” a criminal suspect before the press to be filmed. Perp walks have been challenged under the Fourth Amendment as unreasonable seizures of the person, but with limited success. This article examines the governing Fourth Amendment case law on perp walks. It finds the cases have deviated from conventional Fourth Amendment doctrine, instead establishing a bright-line rule based on an overstated distinction between different types of perp walks. The cases also overestimate the perp walk’s informative value while overlooking its punitive effects. Drawing on media studies, the article questions the claim that perp walks increase public access to the criminal justice system, arguing that they are necessarily distortionary media events. Drawing on both legal and anthropological sources, it goes on to suggest that perp walks are also inherently punitive events, akin to traditional shaming sanctions. Finally, the article offers a prescriptive analysis of how the perp walk cases can be brought back into line with Fourth Amendment doctrine and made to account for the perp walk’s distortionary and punitive effects.