Reader reponds to Bill of Rights claim
Robert Condlin of Baltimore was so provoked by one reader comment in Monday's Getting There column that he wrote a lengthy, well-reasoned response. The column was a summary of reader response to a previous article describing the multiple speeding offenses of speed camera opponent and Annapolis lobbyist Bruce Bereano.
Here's what Condlin had to say:
Your story today has a quotation from a letter in it that I’d like to respond to. Here’s the quotation.
"Ever since the adoption of the Bill of Rights, citizens have had the right to confront their accusers with cross-examination and they have had the presumption of innocence. This goes out the window with speed cameras, red light cameras, etc. The state does this with a fictitious process that converts a minor criminal penalty into a 'civil fine.' By making the fine a civil matter, rather than criminal, the state throws the Bill of Rights out the window."
There are two arguments in this paragraph, though the writer seems to treat them as one, and both are bogus.
First, take the "confrontation" point. It is true that there is a constitutional right to confront one’s accusers and another to be presumed innocent until proven guilty, but speed cameras do not deny either of these rights. Speed cameras collect evidence of speeding, that evidence is introduced against the defendant (at trial if the defendant chooses to contest the charge), and if the defendant is not able to discredit or overcome the evidence he or she is found guilty (or liable). That’s the way all trials work, civil and criminal alike, speed camera proceedings are no different.
Defendants are entitled to "confront" speed camera evidence by cross examining technicians to show that the camera was malfunctioning, improperly set, or the like, and they (the defendants) are presumed innocent until they are unable to do this. But as with any trial, if the evidence goes against you, you lose. What people don’t like about speed camera evidence is that it is strong evidence and difficult to rebut. But there is no constitutional right to have only weak evidence introduced against you. That’s like saying it’s unfair for the state to have an eyewitness to a crime because eyewitness testimony (at least some of it) is difficult to discredit. No one would buy that argument for murder, why would they buy it for speeding?
This ersatz "confrontation clause" claim sounds like the kind of argument someone would make if he or she had never studied law. It’s silly.
The second point, that there is something disreputable about "convert[ing] a minor criminal penalty into a ‘civil fine’" is both incoherent and vacuous. A "fine" is a "minor criminal penalty" by definition. Most minor criminal offenses are punished first with a fine and jail time only if a defendant is a repeat offender. There is no illicit "conversion" of any kind going on in the speed camera situation: "fine" and "minor criminal penalty" are synonyms.
The second part of the point, that making an offense civil rather than criminal somehow "throws the Bill of Rights out the window" is even more difficult to make sense of. Is the person arguing that there is a constitutional right to jail time for every criminal offense no matter how minor, that a state somehow offends the Constitution when it imposes a lesser penalty for certain types of offenses? If so, this "unqualified right to the most severe form of punishment in every case" argument is a completely novel point in constitutional law scholarship; the letter writer ought to put it in an article and submit it to law journals. He or she has an insight that escaped Holmes, Cardozo, Brandeis and the boys (and now girls). Of course there is always the problem of getting it published, law journals have standards, but then that’s what blogs are for.
Sorry to go on for so long, but I have seen these silly arguments trotted out again and again in letters about speed cameras and have just gotten tired of hearing them.
I understand that discrediting the arguments will have no lasting effect on opponents of speed cameras; they will come up with something equally bogus as substitutes, but one fights only one battle at a time.