Confessions of Guilt: From Torture to Miranda and Beyond

Authors: George C. Thomas III & Richard A. Leo
Oxford, UK; New York: Oxford University Press, 2012.
Reviewer: Andrew D. Leipold | September 2012

Few things in the law are as exciting as a criminal confession. Confessions, in turn, are no fun without an interrogation to produce it, with its blurry lines between clever police work, hard-edge persuasion, and coercion. Small wonder that the process of inducing people to say something destructive about themselves is a subject of such enduring fascination to both lawyers and the public.

Enter George Thomas and Richard Leo’s terrific book Confessions of Guilt: From Torture to Miranda and Beyond. Thomas and Leo take a familiar subject and infuse it with serious historical research, colorful (sometimes grisly) examples, and sophisticated legal analysis, then tie it all together with larger themes that synthesize, explain, and predict the regulatory regime. If you don’t know much about the topic, read this book. If you know a lot about this topic, read it anyway; the time invested will be repaid with new information and new insights.

One hallmark of interrogation law is the shifting focus on why we regulate. We can quickly identify the considerations: confessions that are unfairly extracted might be unreliable; even reliable confessions might be extracted by the government in abhorrent ways; and, the 5th Amendment says that we can’t be compelled to be a witness against ourselves in a criminal case. But the contours of voluntariness, impermissible pressure, and compulsion are not self evident, and as the book nicely shows, are often given different shapes by the society and the times.

The book does a masterful job of charting the ebbs and flows of these different interests. It begins in England, roughly with the Assize of Clarendon in 1166, and pursues English law for several hundred years before switching to America. The historical material is rich, and the authors put it to good use. We learn about the importance of circumstantial evidence (English juries could convict on strong circumstantial cases, so there was no reason to torture), the episodic, but centuries-old suspicion about the integrity of confessions, and the prominent role of William Hawkins and Thomas Leach in condemning confessions that were induced by any degree of threats or promises. (The authors call this the “Hawkins Leach dictum,” and trace its emergence and submission over the next two centuries.)

The authors then work their way through American confession law, and while the story is more familiar, the trip is still filled with great insights. Even legal scholars will learn a great deal from the discussion of the culture that led to “third degree” interrogation techniques, and how ambivalent Americas were (are) about the use of this and similar pressure. There is also a highly engaging account of how, more than a century before Miranda, New York required by statute that suspects be given warnings about the right to silence and the right to counsel, a regime that lasted almost 50 years. Along the way there are examples of cases both famous (the impact of the Black Hand and organized crime) and obscure (the use of “sweatboxes”) — often inconsistent and more often infuriating, but always instructive.

Then there is Miranda. Here there is less new information for the professional reader but plenty of provocative analysis. The authors’ core argument is that Miranda, whatever its original goal, is not really a case about protecting the 5th Amendment privilege against self incrimination. Instead, the decision is best understood as a due process-like requirement of fair notice to the accused. The authors argue that this view almost fully explains the serpentine cases since Miranda, including the Court’s otherwise-bewildering analysis of waiver. They also claim that Miranda has reduced the protection afforded the accused even when compared to the due process voluntariness test, which dominated most of the pre-Miranda world. The arguments are elegant and persuasive, and future scholars who take a contrary view of Miranda’s meaning now have a significant intellectual hill to climb.

With all the history, themes, and insights that Confessions of Guilt presents, it is surprising that what the author’s identify as the “thesis” of the work is less engaging. This thesis, they say, “can be simply stated. A culture’s perception of threats to its existence is an important determinant of the level of interrogation pressure that its legal system will tolerate.” Put differently, the more insecure we feel about our personal safety, our national security, or our future, the more we allow or encourage coercion to obtain confessions. It’s a point worth making, but as a theme of the book it is less satisfying than the rest of the material. There are a few reasons why the thesis distracts as much as it informs.

First, the core point is surely true, but does not seem terribly controversial. It is not much of a reach to say that people who feel threatened will go to extraordinary lengths to attack the threat, or that one of the primal threats people feel is caused by crime. Indeed, the big insight would have been if the history of interrogation showed that this was not the case – if, even in times of peril, we somehow had the restraint and foresight to resist using more coercive measures.

Second, despite the self-evident correctness of the theme, Miranda itself doesn’t fit easily into the narrative. At least at the time it was decided, Miranda was conceived as a serious limit on police interrogations, and the authors claim that the Court felt free to make the move because America was feeling less threatened: “By 1966, the stresses and strains that produced the third degree in American law had moderated. The Depression had ended, the Second World War had been won, the 1950s were a calm decade, organized crime was no longer on the ascendancy, America had become a world-dominant military and economic power, and the Vietnam War had yet to drain our self-confidence.”

Well, maybe. It is also possible to tell a different story about the times, one that would push back against the thesis. In the six years leading up to the Court’s granting of cert. in Miranda (1960-65), the crime rate in the U.S. increased a whopping 30%, with cases like Escobedo and Massiah fanning fears of more to come. Racial tensions were coming to a boil, with southern boycotts, marches on Washington, the sometimes-violent desegregation of schools, and the murders of Malcolm X and Medgar Evers. The President had just been assassinated, barely a year after the country narrowly avoided nuclear war. And while the 1950s may have been calm when compared to the prior two decades, the Cold War, McCarthyism, the loss of atomic supremacy, and the reach of organized crime and union corruption uncovered by the Kefauver and McClellan Committees must have unsettled even the heartiest American. If this was the setting where the Miranda Court felt free to implement a more protective scheme for confessions, it’s unclear what would have led it impose a less protective one.

The point is not that one narrative is better than the other, or that the book’s thesis is incorrect. The Warren Court obviously did think it was “safe” to impose additional restrictions on the police, even in the face of shrill claims about the death of effective law enforcement. (Which the authors nicely document in the “Reactions to Miranda” section.) But it also seems plausible to think that the Court took its bold Miranda step, not because Americans were secure, but because of the Justices’ belief that the invidious effects of racism and poverty were a greater national threat than fewer confessions. This was the time of the Civil Rights Acts, Gideon, the Bail Reform Act, and Lyndon Johnson’s War on Poverty, each in its way trying to ease the tensions caused by the huge entanglement of race, poverty, and crime. The Court may have seen itself as acting dramatically to avoid a looming crisis, not using a period of calm to patch holes in the ship.

The final point about the theme is that it nicely frames, but does not really address, an even more interesting question: what are the normative implications of a flexible standard for interrogations? Could there be a set of rules about how much pressure the police can apply, or about what inducements are offered, or how much we care about the limitations of the accused, ones that turn on the seriousness of the crime being investigated? Could we structure rules that allow an emergent need for prompt information to trump the 5th Amendment interest of the accused?

This is, of course, the “ticking time bomb” case that always pops up when debates on torture and confessions arise. If the police know that a suspect has information and time is of the essence, is it moral and should it be legal to coerce the suspect to save others? Some professional interrogators claim this situation rarely, if ever arises (although it seemed to happen once an hour on the television series 24), and this would surely be a slippery standard to implement. But Thomas and Leo convincingly demonstrate that there are no immutable characteristics to proper interrogation and acceptable confessions. Their thoughts on the normative impact of these changes over time would be a welcome addition to the debate.

But that is for Thomas and Leo’s next book. What is said already in Confessions of Guilt is superb: carefully researched, gracefully written, and unfailingly fair in its analysis and its conclusions. It is a must read for anyone who wants to be taken seriously on this contentious but important subject.

Andrew Leipold is Edwin M. Adams Professor and Director, Program in Criminal Law & Procedure, at the University of Illinois College of Law.