In Partial Defense of Ben Stein

Stein's elitism actually obscured a very sound point hinted at in the title: "Presumed Innocent, Anyone?"

Doug has already demolished Ben Stein’s Odd Response To The Arrest Of Dominique Strauss-Kahn, which was indeed a truly bizarre column.

Alas, Stein’s elitism actually obscured a very sound point hinted at in the title: “Presumed Innocent, Anyone?

In response to Stein’s question, “Did he really have to be put in Riker’s Island? Couldn’t he have been given home detention with a guard? This is a man with a lifetime of public service, on a distinguished level, to put it mildly. Was Riker’s Island really the place to put him on the allegations of one human being?” Doug retorts, “Translation: How dare they treat him like any other person accused of a crime.”

But isn’t the way we treat people merely accused of crimes–often later proven innocent, or at least not proven guilty–actually problematic?

I’m actually sympathetic to Stein’s argument Strauss-Kahn probably isn’t a flight risk. But let’s presume that the judge was legitimately persuaded on that point and concluded that he needed to be incarcerated pending trial. Why on earth are we putting him in a maximum security facility where, as one guard sneered on the news this morning, he’ll be “lucky to get a piece of chicken” for dinner?

Our prison system is notorious the world over for its abuses, with the inmates quite literally running the asylum and the threat of rape and gang violence a daily fact of life. It’s bad enough, in a country that eschews cruel and unusual punishment in our central governing document, that we allow that to go on for convicted felons. But it’s not hard to understand why fixing it isn’t a top priority.

But it’s outrageous that we subject those merely accused of crimes to this treatment. Contra Stein, however, it’s not any more outrageous when it happens Strauss-Kahn than any other accused criminal with no prior convictions. But it’s certainly not any less.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. john personna says:

    I would suspect that this means the justice system knows more about this case than is public.

  2. The whole issue of pre-trial detention is one worth talking about but typically there are only two criteria:

    1. Is the person being arraigned a flight risk or,

    2. Is he a threat to the public ?

    The second does involve looking behind the whole “presumed innocent” thing a little but, frankly, if a guy with a long criminal record comes before a judge accused of another violent crime, he is NOT going to be released on his own recognizance or granted bail.

    In DSK’s case, when this matter went before the arraignment judge on Monday it was clear that there was a legitimate question about whether he would be available for trial. His conduct after the incident, the fact that he has no fixed address in the United States, and, yes, France’s recent record regarding extraditing sex criminals were all probably factors the judge considered. There will be another hearing on this matter on Friday and it’s possible that, by then, DSK’s attorneys will come up with an option that will allow the judge to grant bail without the fear that the Defendant will abscond from the jurisdiction.

    Also, its my understanding that Rikers Island is where nearly all pre-trial detainees are held in New York City, but there are different levels of security. DSK is apparently not being held with the general population, mostly because of fears for his safety.

  3. Chad S says:

    To paraphrase Dave Chappelle: If his name was Dominique Lumbumba from Queens. Ben Stein(or any writer) wouldn’t be defending him at all.

  4. george says:

    You might argue that it depends upon what the person is being accused of – those accused of non-violent crimes might be held in different centers than those accused of violent crimes. Don’t think that helps DSK though.

    Really, it sounds like Stein is just doing the ‘protect one of our own’ thing.

  5. jwest says:

    Although I don’t agree with every point Stein made, I’m bothered that the “evidence” the media found most damning was that he was staying in a $3000/night suite and he was attempting to fly first class.

    Why didn’t the police just shoot him on sight?

  6. john personna says:

    I think most people can see that as a “separate outrage” jwest.

    In fact, “$3000/night” critics are often from the anti-IMF right.

  7. James Joyner says:

    @Chad S: I can’t speak for Stein but I’ve written numerous posts over the years about the prison situation, pretrail confinement, and such. But, sure, there’s more tendency to be concerned when outrageousness effects the tribe than outsiders.

    @jwest and @john personna: Hell, I find the notion that an NGO official is living so lavishly offensive. But, yes, it’s an entirely separate issue.

  8. ponce says:

    Americans don’t really give a rat’s ass about how their criminal justice system functions unless and until they come in contact with it.

  9. James Joyner says:

    @ponce: That’s doubtless true. It’s human nature, after all, not to worry much about other people’s problems–especially when those people are perceived as moral inferiors.

  10. JKB says:

    Well, we hold people in custody all the time before they’ve been properly tried and convicted so the “presumed innocent” meme in regards to DSK is a non-starter. However, Scott Greenfield over at Simple Justice, who has a bit of experience in the NY criminal courts, says that he is being treated differently in that a noname accused would have gotten a small bail on this charge. Of course, the judge certainly didn’t want to look foolish before all the world by giving bail only to have DSK abscond off to the notorious haven for rapists with proper political views. Would have have jumped bail given his stature and position, certainly wouldn’t hurt him if he is guilty. Of course, as I understand it, he has not been indicted yet so it would be a bit premature for such actions. But then, if the suspicions are credible, can a reasoned determination of his response be made. The act itself, if substantiated, was impulsive, unthinking and reeks of privilege.

    But as a commenter at Scott’s blog and a few others familiar with European country legal systems, the surprise is that his connections didn’t keep the arrest from happening at all but in Finland, bail is not an option and suspects are held during the active police investigation and then either released pending trial or held depending on the flight risk, no cash payments required.

  11. Franklin says:

    I’ve read almost nothing about this, but isn’t he on a suicide watch? Maybe maximum security is useful for that? I’m possibly grasping at straws here.

  12. JKB says:

    Americans don’t really give a rat’s ass about how their criminal justice system functions unless and until they come in contact with it.

    And that is used quite effectively, via the perp walk and publishing nightly arrests, to punish those who fall afoul of the law. While there is a bit of PR for the prosecutor, the high profile perp walk is held as a penalty to those who don’t succumb to the prosecutions blackmail. Although in this case, it seems to be more PR drawn off a high-profile suspect. The humiliation is part of the price exacted when those without criminal experience are arrested.

  13. I believe I’ve read that while he is at Rikers, it’s not as though he is in genpop. So, he is being treated differently. I certainly wouldn’t suggest putting him in penthouse suite arrest for another $3,000 a day plus room service, and the cost of two armed guards, etc.

    Remember when we would get arguments about “the seriousness of the charge” being the determining factor in whether something was investigated and how?

  14. Rick Almeida says:


    I’m actually sympathetic to Stein’s argument Strauss-Kahn probably isn’t a flight risk.

    Since DSK was arrested “in the first-class cabin of an Air France plane Saturday minutes before take-off”, would you explain why you feel this way?

  15. James Joyner says:

    @Rick Almeida,

    He’s a French citizen who had duties in France the next day; it’s not surprising that he was headed to France. He was, after all, a free man not theretofore charged with a crime.

  16. Rick Almeida says:


    Indeed. But to me, being apprehended while legally leaving the country strongly implies that the accused has the means and certainly a motive to leave the country.

  17. James Joyner says:

    @Rick: Take his passport. Hell, put an ankle tracker on him. Rikers is a hellhole and he’s merely accused, by a single person, of a crime.

  18. Chad S says:

    @James An ankle monitor is a joke frankly. He could cut it off and be at JFK before they knew he cut it off.

    Yes, he’s the accused, but nothing being done to him is any different than what is done to any major accused felon who can leave the country easily.

  19. Unless DSK’s lawyers are complete idiots, they are already in the process of arranging some kind of temporary housing in New York where he can stay, under electronic monitoring, until trial.

    The simple fact is that a person who was leaving the country at the time of arrest and who has no ties to the jurisdiction is not going to be let out on bail without some assurance that they’re just not going to flee. Taking the passport helps, but it’s not foolproof.

  20. JKB says:

    Well, as often happens when one of these guys finally gets caught, there are women coming forward. Most don’t seem quite as criminal but one mention of a Mexican maid who had a similar experience.

    A talk show host has alleged he knows of 14 women with such stories. The French libel laws providing cover until now.

    I’d be concerned with how many wealthy people with their own planes that either owe or would love to be owed favors by man in his position.

  21. Southern Hoosier says:

    I still think about the Duke lacrosse case and how there was such a rush to judgement, just because the victim was poor and Black and the assailants were rich and white.

  22. Rock says:

    But a “perp” walk and a “frog march” are honored political traditions eagerly staged for the press and swiftly reported. Just send him to Club Gitmo where he will get kid glove treatment. Problem solved.

  23. george says:

    I still think about the Duke lacrosse case and how there was such a rush to judgement, just because the victim was poor and Black and the assailants were rich and white.

    Or the case of Bradly Manning, who’s been incarcerated and in solitary without a trial – presumption of innocence doesn’t go far.