Racial Profiling and Media Sensationalism in Criminal Justice and Human Rights

Law and Human Rights (Derecho y Derechos Humanos)

Article  written by Eda Deniz Koselleck

The famous quote says, “Everybody is innocent until proven guilty”, but is it really so when it comes to criminal justice in current times? Or, do we have a mind picture and jailing system where we group the criminals according to their age, sex, religion, race, background, education, profession, social status and etc.? Can it be that for us some criminals are already ruled guilty in our minds before the actual jurisdiction? Do we ask them to prove themselves innocent - not only legally, but also in our perception of the reality?

Moreover, while we try to do the justice, do we observe the guidelines that are supposed to guarantee the human rights or are they only for the lucky elite of our societies? For instance, the moment someone is arrested for terrorism do we make a different treatment depending on their religion, ethnicity, appearance, motives, etc. or accept that it is our duty to follow the rules dictated to guarantee human rights?

In this paper the attention is tried to be drawn to the fact that the justice is frequently depicted as a female figure wearing a blindfold to represent impartiality not for us to close our objective senses towards those whom we prefer to ignore…

Definitions and Norms:

Criminal Justice: The system of laws, procedures and institutions involved in identifying, apprehending, judging and punishing those accused of crimes.

Human Rights: The basic rights and freedoms that belong to every person in the world, from birth until death.

Racial Profiling: Discriminatory practice of targeting individuals for suspicion or other characteristics rather than their actual behaviour or specific information about their potential involvement in wrongdoing.

Sensationalism: Events and topics in news stories are selected and worded to excite the greatest number of readers and viewers.

European Convention on Human Rights https://www.echr.coe.int

International Covenant on Civil and Political Rights https://www.ohchr.org

Charter of Fundamental Rights of the European Union https://eur-lex.europa.eu

Rome Statue (International Criminal Court): https://www.icc-cpi.int

• Charter of Fundamental Rights of the European Union - Article 48(1)

• European Convention on Human Rights (ECHR) (Article 6) and Article 6(2)

• International Covenant on Civil and Political Rights (ICCPR) (Article 9) (Article 14) and Article 14(2)

• Universal Declaration of Human Rights (Article 11)

The discussion and the intellectual, legal, political and ethical justification of the “criminal justice” with regards to its foundations in human rights lays in the simplest principle and the underlying “presumption of innocence”. The famous quote “innocent until proven guilty” is a fundamental tenet of criminal justice ensuring that the accused individuals are treated fairly and unbiasedly until proven otherwise.

However, is this really so? Is this principle a fundamental tenet integrated objectively in our legal and political systems, or a populist quote manipulated by the media and the other power groups? In this given paper this principle will be opened for discussion with its limitations in safeguarding the accused people of a presumed crime in assuming the accused to be innocent unless and until his or her guilt is established beyond a reasonable doubt, by taking into consideration the established “racial profiling” and “media sensationalism” from a legal, political and symbolic- imagological perspective, particularly in “high-profile” cases, such as the case of Luigi Mangione.

Clearly, the presumption of innocence is not a simple quote and therefore the principle is not a mere formality. It is a matter of the most important substance. The history of the principle “presumption of innocence” goes back to Antic Roman times. The sixth-century Digest of Justinian provides as a general rule of evidence, the maxim “Ei incumbit probatio qui dicit, non qui negat”, which can be translated as “the burden of proof lies on him who asserts, not on him who denies”. This principle was later contained in the English Common Law system and formally codified in the modern Human Rights instruments such as the Universal Declaration of Human Rights (Article 11) and the European Convention on Human Rights (Article 6), which reads that “Everyone charged with a panel offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”.

Also, the Talmudical and Islamic law adopted this principle. Talmudical law – as well as the Islamic law which has taken the former sample - states that every man is innocent until proved guilty. Later on, after the collapse of the Western Roman Empire, the West began to practice a synthesis of aspects of Roman Law as well as some Germanic customs according to the new elite, including presumed guilt. The accused could prove his innocence by having twelve people swear that he could not have done what he was accused of. In practice, this tended to favour the nobility over the lower classes, whose witnesses risked being seen as less credible. This dilemma, and the favouring of the “stronger” continues until today with different elitist mechanisms as in the case of “racial profiling” and related prejudices, as will be discussed later. But before that let us state that sometimes this presumption of innocence will, in different forms, face non-compliance.

M. Strandberg writes in his study “The Presumption of Innocence in Civil Cases from Fundamental Procedural Rights from a National Angle” that the presumption of innocence is a characteristic element of modern European law. This principle as already mentioned before has a long history and is recognized in many jurisdictions including Anglo-American jurisdictions, Germanic jurisdictions, Latin jurisdictions and Scandinavian jurisdictions. Strandberg further states that the presumption of innocence principle has the privilege of being part of the constitution in several European countries. It is also included in several international conventions on human rights.

For instance, it is included in the International Covenant on Civil and Political Rights in Article 14(2), the European Convention on Human Rights (ECHR) in Article 6(2) and the Charter of Fundamental Rights of the European Union in Article 48(1).

After laying the grounds of our argument, let us unfortunately state that despite being a fundamental right engraved in justice, the presumption of innocence appears to be neglected in our current legal and political systems. Many accused, who have faced police investigation while under media scrutiny may get the feeling that they have already been trialled before being prosecuted. Similarly, many with a different racial, religious, political, sexual, social and/or economic background than the mainstream norm of a given society fear from being racially profiled and therefore judged in the eyes of the given society and/or authority.

However, it is everyone’s right to have a trial, which is fair, public, heard by an independent court or tribunal and heard in a reasonable time. It is everyone’s right to be informed promptly, in detail, and in a language, which is understandable, the nature and cause of the accusation against the accused person. Everybody has the right to defend themselves in person or with legal assistance of their own choosing, including the access to an independent interpreter if required. Despite these legal protections there are injustices made everywhere. It is not an exceptional incidence to observe the societal biases, media influence and law enforcement practices undermining these principles.

Especially the “high-profile” cases frequently reveal how racialized suspects are subjected to disproportionate scrutiny and prejudgement, damaging the reputation of the accused person long before trial proceedings commence, which would inevitably lead to unfair and partial consideration of all evidence. The historical example of Dreyfus Affair is a very well-known political scandal to name just one.

Since media outlets’ first concern is to boost their ratings and clicks, not reporting actual facts, they are the first not observing this basic right on behalf of the persecuted. Sometimes this method is also used by the governments. They often prematurely influence society with wrongful facts and reports to make them worried (as in the case of the reckless and irresponsible usage of the word/label “terrorist”) or to influence the opinion on the accused person to mark him/her as the wrongdoer.

The recent arrest and indictment of Luigi Mangione for the deadly shooting of the United Health Care CEO Brian Thompson illustrate a similar case, hence provides us all the necessary means of a case study to show how “racial profiling” and “media sensationalism” can shape public perception.

About this, Stanford Law School professor Robert Weisberg said that “The FBI and NYPD could have transported Mangione discreetly, but they opted for a public show”, and some legal experts stated that the perp walk was a “blatant and unnecessary attempt at self promotion”. Yet, as Jorge Camacho from Yale Law School said, “in a case like Mangione’s, where the suspect has garnered some sympathy and applause from people, the tactic backfired.” On social media channels a vast majority of American citizens primarily made him out to be an “antihero”, who stepped up and tried to change the inhumane current American healthcare system - as a reaction to casting him guilty party before any judicial determination was made. The support Mangione has generated has been connected to the public’s often negative view of the health insurance industry and what many consider to be unfair claim denial practices that inflict harm. Mangione later thanked on February 14, 2025, in his first official statement since arrest, the public for their support and stated that it has transcended political, racial and even class divisions.

This given case shows how both parties try to use the media power to manipulate the public opinion and therefore the justice system. Studies show that racial minorities are disproportionately targeted by law enforcement and this selective scrutiny contributes to higher arrest rates and harsher sentences. On the other hand, privileged high education and appealing physical attractiveness fitting to norms seem to have a counter effect, but underlyingly aiming the same manipulation. The case might have developed into another boom if the accused would be an “Afro-American”, a “Muslim” from Afghanistan or an “illiterate male Hispanic” just to pinpoint some stereotype biases based on “racial profiling”.

According to Ontario Human Rights Commission “racial profiling” is any action undertaken for reasons of safety, security or public protection, that relies on stereotypes about race, colour, ethnicity, ancestry, religion, or place of origin, or a combination of these, rather than on a reasonable suspicion, to single out an individual for greater scrutiny or different treatment. The Commission differs racial profiling from criminal profiling. Racial profiling is based on stereotypical assumptions because of one’s race, colour, ethnicity, etc. whereas criminal profiling relies on actual behaviour or on information about suspected activity by someone who meets the description of a specific individual.

If we would combine this above given information with our knowledge of imagology which provides a critical analysis of images and stereotypes in cultural representations it would not be a surprise to consider the “disadvantaged” groups in that given culture and society as a given “victim” of “racial profiling”.   

With this regard, the racial profiling and media sensationalism also intersect with international human rights law. The International Covenant on Civil and Political Rights (ICCPR) guarantees the right to a fair trial (Article 14) and protection from arbitrary detention (Article 9). Similarly, the United Nations Human Rights Committee has repeatedly condemned racial profiling as a violation of non-discrimination principles.

Additionally, international criminal law frameworks such as the Rome Statue of the International Criminal Court emphasize the necessity of impartial justice mechanisms. Impartiality (also called even-handedness or fair-mindedness) is a principle of justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons. Cases of racial profiling and trial by media, as observed in Mangione’s prosecution, challenge these principles and raise concerns with regards to fair trial rights in modern judicial systems.

There are countless other example of lives ruined when suspects are publicly named and shamed by the press and ensued reputational carnage. Governments and political figures also use media outlets to try suspects before actually prosecuting them to advance specific agendas, reinforcing biases that undermine procedural fairness and swaying judicial outcomes.

Past examples, such as the Central Park Five in the United States, reveal how inflammatory political statements contributed to wrongful convictions by pressuring judicial bodies into premature or unjust rulings. In the Central Park Five or Jogger Case five black and Hispanic boys were wrongly convicted of violently attacking and raping a white female, namely Trisha Meili who was running on the day of assault in NY Manhattan Central Park. After two trials, the five teenagers were found guilty of offences including attempted murder, rape, assault and robbery, and were convicted to six to thirteen years in prison. However, a decade after the attack, while incarcerated for attacking five other women in 1989, serial rapist Matias Reyes confessed to the Meili assault and said he was the only actor, and the DNA evidence confirmed his involvement. The convictions against the five teenagers were vacated in 2002 but the case became a prominent example of racial profiling, discrimination, and inequality in the legal system and the media.

Meanwhile, Donald Trump the current President of United States of America who is now responsible as the President for the execution and enforcement of laws created by the Congress and who may also propose legislation and veto bills, (who was then only a NY property mogul with no legislative power) seemed convinced that the teens were guilty and said in an interview with CNN that “Maybe hate is what we need if we’re gonna get something done, I want to hate these murderers and I always will. I am not looking to psychoanalyse or understand them; I am looking to punish them.” He is said to spend a reported 85.000 USD on four full-page adverts in New York newspapers titled: “Bring Back The Death Penalty, Bring Back Our Police!”.

Yet, the implications of media sensationalism and bias and the manipulation attempts are not limited to domestic criminal justice systems but extend far beyond. In international criminal law, similar tactics are often employed to shape narratives surrounding war crimes and human rights violations. Selective reporting and biased portrayals can influence perceptions of guilt before formal jurisdiction by tribunals such as the International Criminal Court (ICC).

Moreover, cases involving leaders from non-Western nations frequently face greater scrutiny than their Western counterparts. To provide a sample, the rightfully issued warrant of arrest on January 18, 2025 by ICC against Osama Elmasry Njeem for crimes against humanity and war crimes, including murder, torture, rape and sexual violence, allegedly committed in Libya from February 2015 onwards, should be considered in this frame. The relatively late arrival of this jurisdiction and unforeseen release from custody and transport back to Libya unfortunately reflects an imbalance and partiality in the enforcement of international justice.

To conclude by reinforcing the primary focus of this given paper, the role of social media (in addition to the press) to intensify the impact of media sensationalism with regards to ungrounded biases and “racial profiling” are inevitable and of outmost importance. Portrayals of crime and punishment in favour of certain physical appearance, sensational headlines, biased information trying to use racial profiling as a credible argument contributes to a “trial-by-media” phenomenon undermining the important role of judicial bodies. It should be noted that agencies should be restricted from making prejudicial statements about suspects before trial, should refrain from inflammatory language and emphasize neutrality by choosing unbiased narratives.

In order to protect the presumption of innocence and to uphold the integrity of the justice system, further comprehensive and structural reforms are necessary. Stricter regulations on law enforcement rhetoric, ethical media reporting standards, political non-interference, social media and international accountability measures and stronger oversight to ensure fairness and impartiality are essential to preserving the fundamental human rights to a fair trial – especially considering the popularising current political and governing tendencies worldwide. Failing to do so and broader implications on international criminal law, can distort accountability mechanisms. Last but not least, safeguarding the presumption of innocence is not just a legal necessity but a moral imperative in the pursuit of justice.

Sources:

Are we still innocent until proven guilty? https://reeds.co.uk/insights/are-we-still-innocent-until-proven-guilty/

Australian Government Attorney-General’s Department: https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/presumption-innocence

Central Park Jogger Case – Wikipedia https://en.m.wikipedia.org/wiki/Central_Park_jogger_case

Charter of Fundamental Rights of the European Union: https://www.europarl.europa.eu/charter/pdf/text_en.pdf

Dreyfus Affair- Wikipedia https://en.wikipedia.org/wiki/Dreyfus_affair

European Convention on Human Rights (ECHR): https://www.echr.coe.int/documents/d/echr/convention_ENG

Human Rights Presumptions: Presumption of Innocence https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/presumption-innocence

International Covenant on Civil and Political Rights: https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

Luigi Mangione: https://www.cbsnews.com/news/luigi-mangione-healthcare-ceo-shooting-what-we-know/ and https://en.wikipedia.org/wiki/Luigi_Mangione

Ontario Human Rights Commission: https://www3.ohrc.on.ca/en

Presumption of Innocence: https://en.wikipedia.org/wiki/Presumption_of_innocence

Presumption of Innocence and related rights – Professional perspectives, 31.03.2021: https://fra.europa.eu/en/publication/2021/presumption-of-innocence

Racial Profiling: https://www3.ohrc.on.ca/en/what-racial-profiling-fact-sheet

Rome Statue (International Criminal Court): https://www.icc-cpi.int

Situation in Libya: ICC arrest warrant against Osama Elmasry Njeem https://www.icc-

cpi.int/news/situation-libya-icc-arrest-warrant-against-osama-elmasry-njeem-alleged-crimes-against-humanity

Strandberg, M., “The Presumption of Innocence in Civil Cases from Fundamental Procedural Rights from a National Angle” published online by Cambridge University Press on 13 October 2018: https://www.cambridge.org/core/books/abs/revisiting-procedural-human-rights/presumption-of-innocence-in-civil-cases/5CBC9386F3B02E58148D6A896D413D85

Trust in government: OECD Survey on Drivers of Trust in Public Institutions – 2024vResults  https://www.oecd.org/en/topics/trust-in-government.html

US District Court for the District of Massachusetts: https://www.mad.uscourts.gov/resources/pattern2003/html/patt4cfo.htm)