Let’s think about the American criminal justice system.
After you get arrested, I can still hang around with you. You are, after all, innocent until proven guilty.
After you’re convicted, and while you’re imprisoned, I guess I’m supposed to shun you. You are, after all, separated from society.
When you’re released from prison (and have satisfied any post-confinement restraints), I’m supposed to welcome you back into society. Felons who have served their time, for example, should have their right to vote restored. Those ex-felons should also be given jobs, so the ex-felons aren’t forced into a life of perpetual crime. After you’ve repaid your debt to society, we welcome you back.
Do I have that right?
Let’s apply those rules to three examples. First, a guy who steals milk and bread for his family is arrested. No problem; he’s innocent until proven guilty. The guy’s convicted; now I shun him for the duration of the punishment. When the punishment’s over, I welcome him back, restoring his right to vote and offering a job. He’s repaid his debt to society and all that.
Second example: A 16-year-old attacks a Vietnamese-American man with a large stick, knocking him unconscious, and later that night punches another Vietnamese-American man, all while using racial slurs. The 16-year-old is charged as an adult, pleads guilty to felony assault, and serves 45 days in prison.
May you associate with that person after he’s released from prison? If the guy later assaults another Vietnamese-American, and that new assault somehow becomes a matter of public interest, then the world will surely condemn your poor judgment: “He seems to be a racially motivated lunatic! How could you have spoken to him? You should have known!”
On the other hand, if the guy never attacks anyone else, and becomes a famous movie star, the world will forgive your decision to associate with him: “Of course you should spend time with Mark Wahlberg.”
Now that we’re clear on how this works, we can move on to my last hypothetical situation.
A guy is arrested on July 27, 2006, on felony charges relating to soliciting prostitution from a minor. It’s no problem socializing with the guy before 2006, because he hasn’t been arrested for anything. And I should keep socializing with him after July 27, because he’s only been arrested, not convicted. Innocent until proven guilty, and all that.
On June 30, 2008, the guy pleads guilty to two charges — procuring a person under 18 for prostitution and soliciting prostitution.
I now have to shun the guy for a while. He’s been convicted, so he’s no longer presumed innocent.
The guy is sentenced to 18 months in prison. (He serves only 13 months, with extensive work release, allowing release for up to 12 hours daily, six days a week.)
I’m not exactly sure how long I’m supposed to shun the guy, but let’s call it the entire length of the original sentence — 18 months. (I’m also not sure what to do with the year of house arrest after release from prison and the registration as a sex offender. In most states, a sex offender’s right to vote is restored after release from prison, so I guess sex offenders are deemed to have repaid their debts to society upon release.)
That means that at year-end 2009 — 18 months after conviction, when the sentence is over — the guy has repaid his debt to society. I’m supposed to embrace him again — because anything else wouldn’t be fair.
The guy is arrested again on July 6, 2019, for assorted sex trafficking offenses. The guy dies in jail, so there’s no decision — either acquittal or conviction — on the second set of charges. For the second arrest, the guy is once more presumed innocent from July 6 until his death. There’s no shunning an innocent man.
Here’s my point. (You hoped knew I’d get there eventually.) This guy was supposed to be shunned by society only from June 30, 2008, the date of his first (and only) conviction, through year-end 2009, when his sentence expired. All the rest of the time, he was either not yet arrested, presumed innocent, or had repaid his debt to society.
Tell me again why there’s all that fuss about people who were hanging around with Jeffrey Epstein during the 1990s or from 2010 until his death.
Just think about it. I’m not sure how you’ll resolve that thought experiment, but you owe it to yourself to be consistent.
(In case you’re interested, Donald Trump was presumed innocent until May 30, 2024, when he was convicted of 34 felony offenses. Trump received an unconditional discharge on January 10, 2025. MAGA Republicans didn’t do too good a job of shunning him during the intervening months. Maybe they’ll do better next time.)
Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
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