ISSN 2330-717X

Coerced Confessions: How The Plea Bargain Replaced Physical Torture – Analysis

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By Chris Calton*

In 2010, Chicago police commander Jon Burge was convicted on counts of perjury and obstruction of justice and sentenced to four and a half years in prison. Although he was convicted of lying under oath, his real crime was what he was lying about. Over the course of his career, he participated in or oversaw the torture of hundreds of suspects to coerce confessions for violent crime. The stories of Burge’s tortures—involving electroshock and suffocation, among other things—showed enough similarities between otherwise unconnected inmates that he went to trial in 1989. After a hung jury, the judge ordered a retrial, which never came. Over the course of the 1990s, more information about police torture under Burge’s leadership surfaced, but the district attorney refused to move forward with a new trial. Finally, after the statute of limitations had expired on Burge’s original indictment, the city brought in a special prosecutor, who pressed charges against Burge for perjury during his original trial.

After a short stint in prison, Burge retired to Florida, where he lived on a $4,000-a-month pension until his death in 2018. The legacy of his methods of extracting confessions still plagues Chicago, however, as cases continue to be reexamined—Shawn Whirl, the first of his victims to be exonerated after twenty-five years in prison walked free in 2015. In 1990, Whirl was arrested after his fingerprints were discovered in the back of a cab whose driver had been murdered (hardly damning evidence against a man who had no prior criminal record). When his case was finally reopened as one of the hundreds of victims of Burge’s police department, prosecutors refused to press charges as the original case had entirely been built on Whirl’s coerced confession.

“The Third Degree” and Adversarial Justice

Coerced confessions have a long history in American policing. In 1845, several urban centers began the transition away from private law enforcement with the establishment of city-run police forces and district attorneys. This change marked a transition out of the traditional justice system, in which disputes were brought by private citizens and prosecuted by private lawyers, and order was maintained by voluntary citizens serving as night watches or constables, not unlike a modern neighborhood watch.

Over the ensuing decades, government-run police forces and prosecutors spread throughout the country, and a new system of criminal justice developed. Unlike in the previous system, police were charged with bringing people to trial for crimes regardless of whether or not another citizen initiated the dispute. To gain a conviction, the police had to gather evidence—a job previously left to the private attorney serving as prosecutor—but forensic science was in its infancy and police obtained their jobs through political connections and patronage rather than qualification. The easiest way to obtain a conviction, then, was to extract a confession. Since few criminals are willing to confess voluntarily, police began to resort more regularly to beatings and other tortures until a suspect signed a confession. By the 1880s, accusations of police tortures were widespread.

With coerced confessions more common, new language emerged to describe the methods. One early euphemism for police torture was “sweating,” which originally referred to a specific—and popular—method of torture in which a person was confined to a small sauna and deprived of water, though the term “sweating” eventually came to refer to general methods of violent interrogation in the police lexicon. The slang failed to stick, though, as a softer euphemism—the “third degree”—gained greater currency.

Methods of giving suspects the third degree varied widely between police forces. Some methods were more physical, ranging from simple beatings to electric shock (when the technology became available). Other methods were more psychological, usually aiming to induce fear, such as when police officers doused a fifteen-year-old suspect in gasoline, lit a match, and threatened to light him on fire if he did not confess his crime. Other psychological methods, usually imposed on the spouses of suspects, was to traumatize people with the brutalized remains of murder victims or other similar experiences. One suspect in a dual murder case was compelled to stand silently for twenty minutes while wearing the blood-drenched vest of the male murder victim while holding the blood-stained dress of the female victim in his left hand and the bible in his right.1

These methods were conducive to the new “adversarial” system of justice, which placed primary value on a guilty verdict and, by extension, on the confession. Traditional inquisitorial justice—common in European history—considered more than mere guilt when deciding the fate of a criminal, and this tradition remained in private community judicial systems. With the formalization of government-run police and prosecution, however, objective guilt in violation of uniform law took primacy and confession simplified the process of obtaining evidence and presenting a case. Torture was the easiest way to obtain a confession.

Reform and Centralization

Eventually, people came to question the reliability of coerced confessions and the ethicality of such methods of interrogation. Police defended their tactics by raising the specter of rampant criminality. When state supreme courts began to occasionally overturn convictions based on coerced confessions, police defenders raised accusations of “shyster” lawyers who made easy profits taking advantage of legal “loopholes” to free criminals, returning dangerous people to respectable society. References to a “criminal class” entered the debate, and the proliferation of cheap fiction fanned the flames with sensational tales of violent criminals.

Municipal and state prosecutors and judges, of course, had little incentive to push back against coerced confessions. Just as with modern plea bargains, confessions lightened their workload considerably. Even when states passed “anti-sweating” laws and other statutes against coerced confessions, judges routinely ignored them and prosecutors refused to press charges against cops who violated the law.

Alcohol prohibition dramatically increased these problems, as local police and state courts were tasked with enforcing a sweeping federal law that, overnight, turned millions of previously law-abiding citizens into felons. With courtrooms packed and police facing a larger criminal population, the efficiency of coerced confessions spurred a greater toleration of the practice. This led to a greater outcry against the criminal justice system, compelling prohibition advocates to pressure the new president, Herbert Hoover, to fix policing before it undermined prohibition. Hoover responded with the Wickersham Commission.

The Wickersham Commission—formally titled the National Commission on Law Observance and Enforcement—was part of Hoover’s larger ambition of centralizing and modernizing law enforcement in the United States. One important outcome of the Wickersham Commission was the collection of national crime statistics. National statistics, which mostly reflect large urban areas, were a tool that demagogues and politicians would use to inflame scares of “criminal epidemics” and consequent increases in the carceral state by giving the impression of crime epidemics in otherwise peaceful communities.

But the commission also devoted a full report to police torture, titled “The Third Degree.” In this report, the commission excoriated local police forces for their common recourse to torture to obtain confessions. Although the report recommended reforms to state and city laws to prevent coerced confessions, many politicians resisted. When New York passed an anti-third-degree law—one of the few states to do so in response to the commission—New York City mayor Fiorello La Guardia said that the law was a “Magna Carta” for “punks, pimps, crooks, gangsters, racketeers and the shyster lawyers.”2

To help nudge local police forces in the right direction, J. Edgar Hoover set up the Scientific Crime Detection Laboratory for his Bureau of Investigation (soon to be renamed the Federal Bureau of Investigation) and set the example for modern policing with forensic science. With the use of new technologies, the third degree could be rendered obsolete. Of course, the use of these new methods of investigation required training, equipment, and staff, and this meant substantial increases in police budgets. In this way, the outcry against police torture inadvertently supported the growth of police at both the national and local levels.

Prosecutors and Plea Bargains

The use of the third degree did not die with the birth of forensic science, as the case of Jon Burge demonstrates; however, it did mark the end of any public defense of police torture. States were no longer so reluctant to pass antitorture laws, and the federal supreme court issued a series of rulings that extended the Bill of Rights to the states, including the 1936 case Brown v. Mississippi, which ruled coerced confessions unconstitutional and inadmissible even in state criminal trials. The federal government now claimed regulatory power of state and local criminal justice systems.

But even if violent confessions declined, coerced confessions have merely taken a new form. As state legislatures took over much of judges’ sentencing power, they set guidelines for sentencing that constrain judicial discretion. Because prosecutors retain discretion over what charges to file—complete with an expansive list of felony categories that did not exist during the early days of coerced interrogations—district and state attorneys can threaten harsher charges against a defendant in order to convince him to take a plea deal. Although this may not be as visually shocking as dousing a teenager in gasoline and threatening to light him on fire, the use of fear to obtain criminal confessions continues the long tradition of the “third degree.”

*About the author: Chris Calton is a 2018 Mises Institute Research Fellow and an economic historian. He is writer and host of the Historical Controversies podcast. See also his YouTube channel here.

Source: This article was published by the MISES Institute

  • 1.W. Fitzhugh Brundage, Civilizing Torture: An American Tradition (Cambridge, MA: Harvard University Press, 2018), 212–13.
  • 2.Fiorello La Guardia, quoted in Brundage, 241.

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The Mises Institute, founded in 1982, teaches the scholarship of Austrian economics, freedom, and peace. The liberal intellectual tradition of Ludwig von Mises (1881-1973) and Murray N. Rothbard (1926-1995) guides us. Accordingly, the Mises Institute seeks a profound and radical shift in the intellectual climate: away from statism and toward a private property order. The Mises Institute encourages critical historical research, and stands against political correctness.

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