Avoiding the need for costly investigations

Emily Horowitz writes about false confessions in Counterpunch. The military-industrial-congressional-prison-infotainment-education complex relies on confessions to handle the overwhelming number of cases that come before the courts.

[T]he U.S. is heavily invested in a criminal justice system that would be paralyzed without confessions. Ninety-two per cent of felony convictions are obtained by plea bargains or confessions. That’s a far higher rate than in other countries (Italy’s, for example, is 8 per cent, and Norway doesn’t allow plea bargaining at all).

Relying on confessions to prosecute crimes is thrifty because it avoids the need for costly investigations. But it’s also very destructive to justice, according to Jerusalem University criminologist Boaz Sangero. Writing in a recent issue of Cardozo Law Review, he lists several problems. The first is that, after a suspect is apprehended, police tend to ignore serious investigation; instead, they focus on getting a confession. And once the confession is obtained, any other work going on at all typically ends. The push to handle cases this way encourages misbehavior in the interrogation room.

Further, reliance on confessions promotes disgraceful conditions of detention. Jails are often worse than prisons. Filth, bad food, lack of sunlight, crowding and violence pressure people to say they did something – anything, whether it’s true or not – just to get out of lockup. Then, because they’ve confessed, we figure it’s OK to keep others like them in awful cells – and to bring in more detainees for interrogation. It’s a vicious circle, and most who get trapped in it are poor, uneducated, and unacculturated. Their marginal status is bound up with the moralistic judgment that they are different from us, and therefore bad. Their badness reinforces our willingness to keep a bad system in place. It probably also allows us to export illegal interrogation – our 1930s-era torture, updated – to places like Abu Ghraib and Guantanamo.

Beyond fear of the bad “other” and desire for a bargain, though, there’s a more fundamental, existential reason why dependence on self-incrimination is mean and unfair. As Sangero notes, any kind of interrogation which focuses on obtaining confessions – legal or illegal – probably violates people’s rights. That’s because, from the point of view of self-interest, confession makes no sense at all. People are asked to help themselves by condemning themselves. It is deeply irrational.

That irrationality is especially apparent in the many confessions made, even though they were not extracted directly by police questioning. In fact, as Sanjero notes, it’s possible that most confessions arise not from external coercion but from states of dependency and abjection that people internalized before they were ever interrogated.

Historical and legal records abound with examples. After Charles Lindbergh’s baby was abducted, over 200 people walked into police stations and said they were the kidnapper. More than 30 told authorities they were the murderer of a woman who came to be known as “The Black Dahlia” – a Hollywood actress whose mutilated body was found in a vacant lot in Los Angeles in the 1940s. In a case that truly smacks of internalized abjection and desire for quick death, Heinrich Himmler lost his pipe while visiting a concentration camp during World War II. A search ensued, but on returning to his car Himmler found the pipe on his seat. Meanwhile, the camp commandant reported that six prisoners had already confessed to stealing it.

Since they are not products of police interrogation, no amount of videotaping will eradicate these confessions. Yet, we accept them. At least partly, this is because quick admissions of guilt are cheap, and easy on the justice system. But, more fundamentally, the very concept of confession is deeply embedded in our culture.

It was not always so. Ancient Jewish law barred criminal confessions. In Talmudic commentary – cited in the Supreme Court's Miranda decision, by the way – the rabbinical scholar Maimonides notes, “The court shall not put a man to death or flog him on his own admission.” Additional evidence and witnesses are needed, Maimonides explains, because the impulse to confess is, by definition, self-destructive. Of a man who professes guilt, there is always the possibility that he is “one of those who are in misery, bitter in soul, who long for death …perhaps this was the reason that prompted him to confess to a crime he had not committed, in order that he be put to death.”

Since the 1551 Council of Trent, however, the Roman Catholic Church has taught that confession is good for the soul – yea, even necessary, to save it and purge it of impurity. This religious notion has since been incorporated into law and into the modern, secular definition of the self. Being a fully realized person today requires full disclosure to family, friends, and even (in the case of writers, artists and public figures) to the polity: of one’s deepest emotions, darkest sexual impulses, and past misdoings. Confession isn’t just good for the self. We need confession to be a self.

But when self meets soul in the modern justice system, it’s a train wreck of contradiction. As Yale University comparative literature scholar Peter Brooks notes in his book Troubling Confessions, “That we continue to encourage the police to obtain confessions whenever possible implies a nearly Dostoevskian model of the criminal suspect … we want him to break down and confess, we want and need his abjection since this is the best guarantee that he needs punishment, and that in punishing him our consciences are clear.” On the other hand, our Mirandan insistence “that the suspect’s will must not be overborne, that he be a conscious agent of his undoing, of course implies the opposite, that we don’t want Dostoevskian groveling in the interrogation room, but the voluntary (manly?) assumption of guilt. Hence the paradox of the confession that must be called voluntary while everything conduces to assure that it is not.”

It wasn’t so long ago that masters of American jurisprudence were actively grappling with this contradiction. In the 1966 Miranda decision, Earl Warren recommended that the police find other evidence to solve a crime than the “cruel, simple expedient of compelling it from [the suspect’s] own mouth.” Twelve years before Warren made that statement, Abe Fortas, who later would replace Warren on the Supreme Court, wrote that “Mea culpa belongs to a man and his God. It is a plea that cannot be exacted from free men by human authority.”

Today, Sangero agrees with these liberal lawmakers from a bygone era. He wholly opposes the eliciting and use of confession to solve and prosecute crimes. But, if confession is employed, he believes the case should never go forward unless meaningful evidence is first gathered from sources independent of the confession – evidence that strongly shows, rather than merely suggests, that the suspect committed the crime. Many people fear that such a policy would allow lots of guilty people to go free. Sangero dismisses their worries. Forensic science in the U.S. today is so sophisticated and high tech, he says, that police have only to use it. All that is required to convict criminals justly is that the cops do their job.

Sangero is very leery of putting too much emphasis on recording. Sure, he says, it’s needed. But narrowly focusing on videotaping reforms does not encourage the police to redirect investigations away from defendants’ self-incrimination and toward the gathering of independent evidence.