Remedies for the Third Degree
I
THE third degree is the infliction of physical or mental suffering to obtain a confession or other information about a crime. It is illegal, unconstitutional, inhumane, yet its use by police and other law-enforcing officials is widespread over the United States. This is shown in a recent report of the Wickersham Commission, and many of the facts are discussed in the September Atlantic Monthly by Ernest J. Hopkins, in ‘The Lawless Arm of the Law.’ An intensive investigation found the third degree prevalent in New York, Buffalo, Newark, Cleveland, Detroit, Chicago, Los Angeles, San Francisco, and Seattle. Appellate courts, in sixty-seven decisions during the past decade, have held that confessions were extorted by brutal practices, not only in several of the cities named, but also in Richmond, Miami, Louisville, Washington, St. Louis, Kansas City, New Orleans, and many other places, covering over half the states. Nor is this just an urban problem. More than one third of the judicially reported cases since 1920 occurred in communities of less than ten thousand inhabitants. Consequently, the third degree may fairly be called a nation-wide evil.
The mildest form is questioning prolonged until the prisoner’s energies are spent and his powers of resistance overcome. When the questioners become worn out, they are replaced by a fresh relay of detectives, but there is no such relief for the suspect. He is kept under interrogation for many hours, day and night, without rest or sleep or perhaps even a chance to sit down. In many cases he is threatened with blows or with delivery to a mob. And the actual use of physical brutality is extensive — especially beating with the fists, a whip, or a piece of rubber hose. Not all the victims of these abuses are guilty; there are strong reasons for believing that a substantial proportion of them are innocent.
Allowances must be made for the difficulties of the officials who are trying to run down clever, well-organized criminals, and believe that the only way to do it is by using these illegal practices. Yet the English police detect a high percentage of crimes while keeping strictly within the law. And in such large American cities as Boston, Cincinnati, and Philadelphia the police are now strongly opposed to the third degree and declare that they can get as good results, or better, by lawful methods like friendly questioning and a vigorous search for outside evidence.
Thus the third degree is unnecessary for putting down crime. It ought to be abolished, not merely because it is illegal, but because of the serious evils it causes. It involves the danger of wholly or partially false confessions. It impairs the efficiency of the police by accustoming them to trying to prove most cases by extorted confessions instead of looking for witnesses and facts. Finally, such habitual gross lawlessness brutalizes the police, hardens the prisoner against society, and lowers the esteem in which the administration of justice is held by the public.
Our problem is, How to get rid of the third degree? This cannot be accomplished by denunciations of the police. What we need are remedies which will influence them to abandon it and put down crime as effectively, or more so, by legal means. Many suggestions have been put forward for this purpose. Unfortunately there are strong reasons for believing that most of them would be unsuccessful.
A discussion of the various proposals, many of which call for constitutional amendments or new statutes, will be easier to understand if it is preceded by a brief description of the existing law and the way it operates.
II
The Constitution of the United States and those of nearly all the individual states provide that no man shall be compelled to give evidence against himself in a criminal case. An accused person has the absolute right to remain silent when questioned, either in the courtroom at his trial or in the police station or elsewhere after his arrest. Also it is law everywhere that a confession obtained by coercion cannot be given to the jury as evidence. Thus one penalty for the use of the third degree is that if it is proved at the trial the confession will be kept out of the case and in consequence the prisoner may be acquitted.
A second penalty is that the official inflicting the third degree may be held guilty of a crime. This is true everywhere if he used violent methods. In some states special statutes have made other forms of the third degree criminal, and imposed severe punishment. In Kentucky, for example, prolonged questioning is the crime of ‘sweating.’
Both kinds of penalty often fail to prevent the extortion of information from a suspect. The reasons for this failure will be given later. The circumstances which afford an opportunity for the extortion must now be explained.
The danger period, when the third degree is ordinarily administered, begins with arrest and ends when the police bring their prisoner before a police judge or other magistrate. Except for petty offenses like drunkenness, which the magistrate tries himself, his function is to conduct a preliminary examination to see whether the evidence justifies binding over the prisoner for the grand jury (or other action by the district attorney). If so, the accused, unless released on bail, is taken from the police and committed to the county jail in the custody of the sheriff, who is less apt to allow the third degree, since he lacks strong motives for getting convictions. Thus, whether the accused is bailed or jailed, the danger period is usually over at this point. Consequently the police know that they must get in their work before the suspect appears in the magistrate’s court. The law in all states requires him to be brought in by the police within a short time after arrest, but it is often disobeyed. In order to prolong the opportunities for questioning and the use of coercion, the police may keep him out of court for days and even weeks. They resort to such devices as making no record of the arrest, refusing admission to his lawyer, hiding him in remote stations, so that friends and lawyers do not know where he is. These events after arrest are the vital spots of the third degree.
To cure the third-degree evil, many changes in the law and procedure just outlined have been proposed, such as more criminal statutes, stiffer restrictions on the admissibility of confessions, legal schemes to get more information from the prisoner either at his trial or at the preliminary hearing, novel laboratory devices for extracting the truth from suspects. In the following discussion of these proposals and of several alternative suggestions, they will be grouped so as to develop five general principles, which, I believe, should govern the search for successful remedies.
III
Little or no further legislation is needed.
The first natural reaction to shocking instances of the third degree is to demand more laws against it, especially statutes imposing severe punishments on its perpetrators. Yet there are enough laws now to stop the third degree, if words would only operate of themselves. The trouble is the lack of any power behind them sufficient to hold back the officials who are about to give a suspect ‘the works.’
In particular, criminal statutes have no appreciable tendency to check these abuses. It is useless to multiply punishments when very few get punished. Occasional convictions of brutal policemen for assault and battery appear in the press — this is under the general criminal law. The special statutes against the third degree, like the Kentucky ‘anti-sweating act,’ have not resulted in a single prosecution which is reported in any judicial decision during the past decade. Illinois, California, and Washington have stringent legislation against the third degree, but it was found to be prevalent in Chicago, Los Angeles, San Francisco, and Seattle.
Prosecutions of the police are an unsuccessful remedy for several reasons. Evidence of brutality is hard to obtain. Other policemen will rally to their accused associates and deny any application of the third degree. Jurymen are likely to be lenient toward the police, whom they regard as protecting society, even if they do it illegally. Unless convictions are obtained, a prosecution is worse than useless — the officials will feel safer than ever in continuing brutal methods. And a prosecuting attorney who has himself participated in administering the third degree or knowingly profited from its results will not be zealous about punishing the policemen who helped him.
Consequently, new criminal statutes would only mean more law to be violated by officials, if so inclined. As one police commissioner remarked, law is really what the human factor makes it; legal changes would make no difference in what the police found necessary or could ‘get away with.’
Proposals for stiffening the restrictions on the admissibility of confessions at the trial are also no more likely to be enforced than the existing law.
Under this, extorted confessions are excluded by the courts when the coercion is proved — but proof is difficult. The prisoner tells his story of brutality; the police deny it. Nobody backs him up — the interrogation was secret. And disreputable lawyers have trumped up third-degree allegations so often that this defense is readily disbelieved even when true. Finally, the risk of losing the confession in court appears, at the time of arrest months earlier, too distant and slight to deter the police from using illegal pressure on their prisoner, especially as they hope to extract clues from him which can be utilized immediately for tracking down an accomplice, hidden loot and weapons, or other valuable facts. These facts will perhaps assure a conviction even if the confession should be shut out. Thus that remote penalty operates very imperfectly to make the police obey the law during the danger period.
Why should added restrictions work any better, when they impose the same penalty? Some suggestions of this sort are worth mentioning for their useless ingenuity and the bitter opposition they have aroused. An Illinois legislative bill requiring that when the police questioned a suspect a notary public and a minister of the gospel should be present was denounced as ‘an anarchistic attempt to make the way of the transgressor easy. It clothes the thug in purple and fine linen, draws a sacred circle around him, and defies the officers of the law to approach him except with unctuous civility and dumb deference.’ A California measure insisted on the presence of the prisoner’s lawyer and a magistrate; this was described by a police chief as an open invitation to the criminal elements of the world to migrate to California.
A better objection to all such paper restrictions is that the police would easily brush them aside. The same criticism applies to the proposal of two distinguished sociologists that after the police had questioned a suspect for three hours they should give him an hour’s rest.
In short, the policemen and prosecutors who use the third degree are the very persons who substantially control the enforcement of the laws against it. So long as these officials believe in these illegal methods, they can hardly be expected to prosecute each other for employing them, or to insist on rigid observance of regulations directed against such methods.
One of two courses of action is therefore necessary — perhaps both: (1) to produce a different mental attitude in the officials; (2) to find independent persons who will set the legal machinery in motion against lawbreaking policemen and district attorneys. In either event, no new laws are needed.
IV
The third degree is primarily a police problem; and remedies, to be effective, must influence the conduct of the police during the time the suspect is in their hands.
Remedies come too late when they operate mainly at the jury trial, long after the expiration of the danger period of the third degree. That is one weakness, as we have already seen, of the rule excluding coerced confessions. It would affect even more seriously the remedy next to be considered.
This is a proposal which hopes to displace the third degree by making it easier to get information from the prisoner at his trial. Under the present law, except in New Jersey, Ohio, and South Dakota, if he refuses to take the stand, nobody can point out to the jury that this silence in the face of damaging charges is some indication of guilt. Suppose the law were changed so that the district attorney or the trial judge could say, ‘If the prisoner is innocent, why does n’t he tell us where he was on the night of the murder?’ Several writers have argued that if such unfavorable inferences were made permissible the prisoner would be less likely to keep off the stand; and, they continue, if prosecutors and policemen knew they would thus have more chance of getting the accused to tell his story at the trial, then they might not be tempted to extort it from him by blows before the trial.
The trouble is that this delicate logic has no real relation to the minds of policemen who have just arrested a suspect. Of what use to them are facts that may possibly be learned at the trial, months later? They must start building up their case against the prisoner at once. They want to get immediate clues from him if they can. Also he may be induced to plead guilty — then what he might say on the stand is not worth bothering about. So they go ahead and apply the third degree, if that is their practice.
The proposed remedy has long been operating in New Jersey, but no informed person has been found who thought it had any effect in lessening the third degree there. The Newark police are regularly operating a carefully elaborated routine for getting confessions with frequent use of the less brutal forms of coercion. Most of the policemen are said not to realize that New Jersey law differs from that of other states, so this fact does not influence them; instead, they are affected by police methods used in large cities generally. A Newark police official says he would employ the methods he now finds satisfactory wherever he was working, regardless of differences in court procedure. Thus the Newark situation furnishes no indication that the adoption of the New Jersey rule in other states would drive out the third degree.
With this belated and remote remedy, contrast the factors discussed under the next heading, which operate successfully in Boston during the danger period.
V
Remedies should conform as closely as possible to existing lawful police practices and to the present organization of criminal justice.
Any remedy which involves a very wide departure from the lawful procedure to which officials are accustomed is likely to meet with prolonged opposition on their part. Its adoption will be delayed, it may not receive their loyal support if adopted, and it may create new and unforeseen obstacles to justice. Big jumps in policy may be unattainable or undesirable. Bad as the third degree is, we should be very cautious about disrupting the police department and the courts in the hope of abolishing it.
Let us begin by considering two simple remedies which are free from the foregoing objections.
The first is to shorten this danger period by obtaining the prompt production of the prisoner before a magistrate, after which he should be out of the hands of the police. This is the situation in Boston, and appears to contribute to the virtual nonexistence of the third degree in that city. The police know that they have only a short time for investigation; consequently they begin legitimate questioning and the search for outside facts with immediate energy. There is no opportunity for protracted interrogations lasting over several days and nights, which are common in cities where production in court is illegally delayed. Violence is less probable when scars will not have time to heal before the magistrate sees the prisoner next day. This remedy involves no new law; practically all states require prompt production in court. It introduces no startling innovation in police methods, but merely hastens an act which the police are accustomed to perform. Of course, enforcement of this law will not always be an easy matter. The same motives which cause the police in many cities to investigate brutally also lead them to prolong the time of investigation illegally. However, excessive length of confinement is an offense which the judges can discover and correct more easily than secret coercion, and if necessary they can be readily assisted by the special law-enforcing agencies which will be proposed later in this article.
Secondly, official records should be kept of the exact time of arrest and of detention; of the transfers of prisoners and the places to which they are taken; of interviews by the police with prisoners and the time interrogations begin and end; and (as in Boston) of injuries to prisoners found visible during a daily examination. Facts of this nature fit naturally into the records customarily kept in police stations and jails. Some omissions and falsifications may occur for the purpose of concealing illegal practices, but the publicity of the records and a moderate amount of oversight can be made to minimize such a possibility; and the regularity of written records has a psychological tendency to produce accuracy. Nobody likes keeping false books.
The importance of such records is plain. A chief cause of the third degree is its secrecy, which makes it difficult to prove its existence. Before a community can carry out its will to end the third degree and illegal detentions, it must know when and where and how and to what extent abuses are perpetrated. For this purpose the facts as to the detention and treatment of prisoners must be made available to lawyers and judges, the press and the public.
The two remedies just recommended have the advantage of forming a natural part of the existing routine of police stations and magistrates’ courts. Let us turn to several proposals which lack this advantage.
1. In England, the police are forbidden to interrogate a suspect after his arrest or involuntary detention; thus there is no danger of their using brutality or other pressure to obtain the desired answers. Consequently the third degree is nonexistent and would not be tolerated by the police force. However, it is doubtful if this remedy could be successfully transferred to the United States, at least in the near future. It involves a tremendous change in our methods of investigation. In England it has the moral backing of the police. It succeeds because they want it to succeed, are ready to go far to avoid the third degree, and have long been accustomed to build up a case from witnesses and objective facts rather than relying on what the suspect may say. American police officials, on the other hand, attach extreme importance to the questioning of arrested persons. They would consider the adoption of the English rule a serious crippling of their activities, and until they feel otherwise it would only be one more law which they would be tempted to violate. How could they be forced to obey it? It is hard enough to prevent policemen from using physical violence on suspects; it would be far harder to prevent them from asking a few questions. We had better get rid of the rubber hose and twenty-four-hour grillings before we undertake to compel or persuade the police to give up questioning altogether.
2. Another drastic change in the law aims to replace all secret inquisitions on the part of police and prosecutors by an examination of the suspect before a magistrate, at which the prisoner’s lawyer would be present. This plan involves a constitutional amendment, so that the suspect could lawfully be compelled to answer questions about the crime, even if he wished to remain silent. Such an amendment is recommended by the members of the Wickersham Commission, who say this compulsory questioning at the preliminary hearing ‘would do away with the motive for unlawful extra-legal examinations.’ It is assumed that, as soon as a suspect is arrested, the police and prosecutors could force him to tell what he knows at the preliminary hearing in court, so that they would no longer care to use the third degree.
Since it would take years to get the proposed amendment adopted by all the states where the third degree now exists, other remedies ought to be tried first. And if the plan ever comes within the range of practical politics, several difficulties will have to be considered.
In the first place, how is the proposed compulsion to be exerted to make the suspect answer questions? Suppose a man disappeared months ago while in the company of the prisoner, but no body has been found. Murder is strongly suspected, and the magistrate asks, ‘What happened while you two men were together? Where is he? Where is his body?’ The prisoner preserves a determined silence. What shall the magistrate do next? Commit the suspect to jail for contempt? What is the use? He is in jail already. So the magistrate adjourns court for the day to think the matter over, and the police take the suspect out. Unless some other remedy for the third degree has been discovered, this would be a tempting moment to try it.
Secondly, unless the police bring every prisoner into court immediately after arrest, they will have the same opportunity as now to get clues from him which they would like to run down before the magistrate sees him. Here again the motive for the third degree arises. Or they may give him an advance beating-up to make him tell the magistrate what they desire. When the suspect sees in the courtroom the same burly detectives who have maltreated him all night, or knows that they will be waiting for him on his way out, the third degree is virtually operating on him despite the magistrate’s presence.
An additional objection is that the Commission’s plan shifts much of the labor of investigating crime from police and prosecutors to magistrates, who are already overburdened with other work and who have never been trained for a task resembling that of the French juge d’instruction. Such a change would seem unwise unless the magistrates were men of high calibre. Yet damaging criticisms of the personnel of the magistrates’ courts have been expressed by the Wickersham Commission; and in New York City these courts have been under heavy fire from the Seabury Investigation. Consequently there is grave danger that many of these courts would not perform well the considerable new work with which they are to be saddled. If so, prosecutors and police would probably be tempted to supplement the deficiencies of the judges by continuing their own independent investigations with the help of the third degree.
3. A more picturesque plan proposes to encourage policemen and prosecutors to get information from a suspect by using, as a substitute for brutality, certain novel devices which have been evolved in criminological laboratories. Two of these devices have received especial attention: the truth serum and the lie detector.
The truth serum, or scopolamine, is related to the drug which has been used to produce twilight sleep during childbirth. Its advocates say it anæsthetizes the higher cortical centres, which are those employed in telling a deliberate lie. Laboratory experts say that they have experimented with it in questioning each other. ‘It is just impossible to lie, for you cannot invent. Also it seems impossible to resist answering any question that is asked. Afterward one does not remember a thing he has said.’ Prosecutors in several cities are said to have used it successfully. The method described is to have a physician look over the suspect, who is later told by the district attorney that he has an incurable disease, but will be given a ‘shot’ that will help him. A man then enters and injects scopolamine hypodermically. The drug is said to be painless, without after effects. Its advocates think that if it is possible to use it legally, without affronting public sentiment, it will be an extraordinarily accurate way of getting the truth out of suspects.
However, in the Mayer murder case in Seattle, where the prosecutor was trying to find the victim’s body under circumstances like those described in a previous paragraph, one suspect merely went sound asleep after receiving the injections, and the answers of the other drugged witness were excluded at the trial. An injunction was issued against further injections. And one prisoner alleged that force was used to make her submit to the drug. The Lancet, a well-known English medical journal, tells of a Japanese youth in Hawaii who confessed to a murder while under the influence of the truth serum; shortly afterward the real murderer was discovered elsewhere. The Lancet concludes, ‘To dope a man into confession would be as distasteful as to extract evidence by torture.’
The lie detector is a machine which is attached to the suspect’s arm and chest, and makes a continuous record of his blood pressure, respiration, and any deliberate flexing of the biceps muscle. Questions are then put to him, and his emotional reactions are recorded in curves on the paper, which are said to show marked characteristics when a question arouses consciousness of guilt. Banks and department stores are reported to have used the lie detector successfully to detect petty pilferers among their employees. Police are less ready to employ it. When a Chicago police official was asked to try it out, he doubled up his fist and said, ‘Here’s the best lie detector.’ However, leading authorities on crime, like August Vollmer and Dean Wigmore, believe it will be a potent aid for investigation, especially for furnishing clues to objective facts.
No encouragement for this view is furnished by the use of the lie detector in the Mayer murder case. Instead of being an alternative to the third degree, the machine was made the occasion for repeated all-night sessions of interrogation. The suspect objected to the machine, and smashed it with his fist. The missing body was never found. But the advocates of the device think its failure due to special adverse conditions. The legality of its use was not decided by the courts.
Whether or not these two devices can accurately determine the guilt of a suspect is a fact not yet established before any judge or legislature. Even so, it is difficult to reconcile their application to an unwilling suspect with his personal liberty and privilege against self-incrimination. Drugging a man by pretext or force is never likely to be tolerated. The lie detector is less objectionable if the questioning is not unduly prolonged. Satisfactory experimentation may lead to its lawful adoption, but it will be a long time before the police are persuaded to use such an unfamiliar device instead of their present methods. And care must be taken lest these devices be employed in such a way as to prove, not substitutes for the third degree, but rather new forms of it.
VI
The third degree is largely a local problem, which each community and its police department must solve for themselves.
In different cities of the same state, all under one law, the extent and forms of the third degree may show wide variations. It is a product of local conditions, and can be cured only by remedies of a nature to work naturally and energetically in the particular community and the particular police department.
The best solution must come from within the police department itself. Such is the experience of American cities where the third degree has disappeared. Some able official, like Stephen O’Meara in Boston, has built up a tradition of efficient law-abiding methods of investigation — has made his subordinates want to use them and able to use them.
By and large, the third degree appears to be interwoven with mediocre police efficiency in dealing with serious crimes. An official in India observed: ‘There is a great deal of laziness in it. It is far pleasanter to sit in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun hunting up evidence.’ And a former New York prosecutor said that if the police ‘could not get their results by brawn they were helpless.’
The relation between the third degree and police efficiency is somewhat peculiar. At the lower end of the scale, abuses may be absent because the police are too incompetent or too closely allied with the criminals to exert themselves to get convictions by any deliberate methods of investigation. The third degree seems likely to occur in departments which are anxious to be active against crime, but which are not trained or willing to make laborious searches for objective facts, preferring to rely on the easier but less satisfactory plan of getting their evidence from suspects as best they can. At the upper end of the scale the third degree disappears, because a well-organized police department with long-established traditions of legitimate skillful methods will be accustomed to get results without it. The London police are the outstanding example of this, but illustrations are furnished by several American cities.
In other words, we cannot get rid of the third degree without putting something better in its place. The great possibilities of scientific crime detection are illustrated by the work at the police laboratory in Lyon, France, as described by its director, Edmond Locard, in his L’Enquête criminelle et les méthodes scientifiques. The criminological laboratory connected with Northwestern University in Chicago, the police laboratories in several other cities, the general use of fingerprints, which are preserved for nationwide consultation in the Bureau of Identification in Washington — these are steps toward reliance on objective evidence rather than extorted confessions. Of late, public attention has been increasingly directed to questions of police organization, personnel, and efficiency; and observers in many cities have noted encouraging factors. All this leads to the belief that the use of law-abiding methods of investigation will be more frequent and more successful as time goes on.
Meanwhile, the community must play its part in obtaining the diminution of the third degree, not only by granting money, political independence, and other essentials for efficient lawful police investigation, but also by specific action.
First, it can form and encourage agencies which will bring pressure on police and prosecutors to make them observe the existing laws against the third degree. No startling innovations are necessary. One feasible agency is a Public Defender, supported either by the city or by private charity. Besides defending indigent prisoners in court, he can see them soon after arrest, so that they are not friendless in the hands of the police. He can visit them in their cells, observe visible injuries, ascertain the existence of illegal detentions, and see that any third-degree defense is honestly but adequately presented at the trial. Finally, the Voluntary Defenders Committee in New York obtains information as to police brutality from its clients, verifies its accuracy, and makes a systematic record of all cases of brutality, on the basis of which annual studies have been published of much value. Knowledge of the facts about the third degree in any city is the first step toward its cure. A different kind of counteractive force is the Constitutional Rights Committee of the Los Angeles Bar Association, which is available to hear any complaint of official lawlessness, investigates it thoroughly, and, if it is well-founded, causes disciplinary proceedings before a police trial board, or a prosecution, to be instituted. Although no such case has yet succeeded, the Committee feels: ‘We have made it easier for the police to refrain from beating them up.’
Secondly, the community can insist on getting the facts about the third degree. The press can be of great assistance, by publishing authenticated instances of brutality and editorials condemning it. It may be desirable to hold public hearings, with power to subpœna witnesses. The police will then have a chance to present their views of proposed alternative methods of investigation, and to ask for changes in any existing legal restrictions upon their work which they think unreasonably narrow.
The third degree cannot thrive under publicity. The police need and desire the approval of their community; and few communities can be proud of men who habitually use the rubber hose.
VII
There is no single remedy for the third degree.
A combination of several factors, as in Boston, is apparently necessary. Simultaneously operating remedies strengthen each other. The law-abiding police tradition promotes prompt production of the suspect in court, and vice versa. A watchful Public Defender or Bar Association can check illegal detentions and encourage accurate records. Consequently success requires a union of some or all of the remedies recommended in this article, as conforming with the various principles set forth: —
1. Observance of the rule for prompt production of the suspect before a magistrate.
2. A public and accurate record of the period of detention, transfers of prisoners, interrogations, and visible injuries.
3. Steady improvement in the efficiency, organization, and equipment of police departments, so that evidence may be better obtained by objective investigation.
4. A fearless, untrammeled body, not subject to political control, to which complaints of brutality can be made and by which such complaints will be energetically investigated.
5. Publicity as to the conditions in each community, through the press and public hearings.
These remedies require no constitutional amendments and no legislation, so that their adoption involves no long delay. But immediate success must not be expected. The third degree is deeply rooted in official habits in many cities, and is not likely to disappear entirely until the officials have been persuaded that it is bad and unnecessary.