Torture

+ Ordeals and Plea Bargaining

The Origin of the Law of Torture: A Cautionary Tale

People in the past worried about convicting the innocent too. In the early Middle Ages they had a solution: Let God judge. A defendant could be subjected to an ordeal such as plunging his hand into boiling water, carrying a red hot iron, being dumped bound into water. Various passages in the Bible were interpreted to imply that God would reveal guilt (hand injured or body sank) or innocence (not injured, floated). Since God was omniscient it was an approach that guaranteed a correct verdict.¹

The use of ordeals was eventually abandoned on theological grounds. A more careful examination of the biblical passages found little support for it and it could be viewed as an attempt by humans to compel God to serve them, religiously dubious. In 1215 the fourth Lateran council rejected the religious legitimacy of judicial ordeals and banned priests from participating in them. Over the next few decades most European countries abandoned their use.

That left medieval judicial systems with the problem of finding another way of being certain a defendant was guilty. The solution was to impose a very high standard of proof,  evidence “clear as the noonday sun.” Conviction required either two unimpeachable eyewitnesses to the crime or a voluntary confession. Circumstantial evidence, however strong, was insufficient.

In the history of Western culture no legal system has ever made a more valiant effort to perfect its safeguards and thereby to exclude completely the possibility of mistaken conviction. But the Europeans learned in due course the inevitable lesson. They had set the level of safeguard too high. They had constructed a system of proof that could as a practical matter be effective only in cases involving overt crime or repentant criminals. Because society cannot long tolerate a legal system that lacks the capacity to convict unrepentant persons who commit clandestine crimes, something had to be done … .(Langbein 1978)

The solution was the law of torture. Once the court had half-proof, one eyewitness or the equivalent in circumstantial evidence, the defendant could be tortured into confessing. A confession under torture was not voluntary so did not count, but that problem could be dealt with. Stop the torture and the next day ask the defendant if he is still willing to confess. Since he is now not being tortured the confession is voluntary. If he doesn’t confess, torture him again.

John Langbein, my source for this account, offers a parallel story in modern law. Two hundred years ago, jury trials were short:

In the Old Bailey in the 1730s we know that the court routinely processed between twelve and twenty jury trials for felony in a single day. A single jury would be impaneled and would hear evidence in numerous unrelated cases before retiring to formulate verdicts in all. Lawyers were not employed in the conduct of ordinary criminal trials, either for the prosecution or the defense. The trial judge called the witnesses (whom the local justice of the peace had bound over to appear), and the proceeding transpired as a relatively unstructured “altercation” between the witnesses and the accused. In the 1790s, when the Americans were constitutionalizing English jury trial, it was still rapid and efficient. “The trial of Hardy for high treason in 1794 was the first that ever lasted more than one day, and the court seriously considered whether it had any power to adjourn… .”

Over the years since trials have become longer and much more complicated, at least in part to reduce the risk of convicting the wrong person. Patricia Hearst’s trial for bank robbery lasted forty days. That was unusually long, but the average felony jury trial in Los Angeles in 1968 took 7.2 days, more than a hundred times the length of a felony trial in the Old Bailey in the 1730’s. If every felony conviction in the U.S. took that long, felony trials alone would require the full time efforts of more than the total number of judges in the state and federal systems² and close to a million jurors, court attendants, and the like. Not impossible but very expensive.

The American legal system found a less expensive alternative. Like its medieval predecessor, it substituted confession for trial. The medieval confession was motivated by the threat of torture. The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted. Like the medieval version, it preserves the form — every felony defendant has the right to a jury trial, a lawyer, and all the paraphernalia of the modern law of criminal defense — but not the substance. Conviction after a lengthy and careful jury trial is arguably evidence of guilt beyond a reasonable doubt. The willingness to accept a sentence of a year, possibly a year already served while awaiting trial, instead of the risk of ten years if convicted is not. Currently in the U.S. about ninety-seven percent of felony convictions are the result of plea bargains, three percent of jury trials.

The Practical Problem

Under both Athenian and Roman law, slave testimony could only be taken under torture. Presumably the theory was that slaves were interrogated to get evidence against their owners, the owner had ways of putting pressure on the slave, so torture was needed to get the slave to tell the truth. In Imperial Chinese law, not only the defendant but also witnesses could be tortured.

Our main source of information on Athenian law consists of orations written by professional orators to be memorized and delivered by a party to a law suit. There is a surviving oration which claims that slave testimony under torture is perfectly reliable, that there has never been a case where it turned out to be false. There is another oration making the obvious argument on the other side, that such testimony is worthless since the slave will say whatever the torturer wants him to say.

They were both written by the same orator.

People in other legal systems that used torture were also aware of the problem. There is a collection of Chinese cases compiled in the 13th century for the use of magistrates. Many of them are cases where a clever judge realizes that an innocent person has been forced to confess under torture and figures out who is really guilty.

That raises an obvious question: If they saw the problem with torture, why did they continue to employ it? One answer is that extracting information might only have been an excuse, that the real purpose was to punish someone without having to first convict him. That is a possible explanation in some contexts. But it does not explain contexts where the person being tortured was not the suspect but a potential witness.

A second possible explanation is the belief that a competent interrogator could distinguish a real confession from a fake one. That strikes me as the most likely explanation in the Roman and Athenian cases, where it was the defendant's slave, not the defendant, who was being interrogated.

A third explanation is that torture might produce information that could be checked. That is the situation in the hypothetical cases sometimes offered in defense of the use of torture: The suspect is being forced to say where the kidnap victim or the time bomb is concealed. More plausibly, where the loot is hidden.

An example of this approach occurs in the law of the Visigoths, the earliest of the surviving Germanic law codes. Before a suspect could be tortured the accuser had to provide the judge with details of the crime that an innocent defendant would not have known. The defendant's confession was only accepted if it matched the details; if the accuser had made the details public, the defendant could not be tortured. How satisfactory the system was for the defendant would depend on how severe the torture was and how much permanent damage it might do to him but it at least was a way of distinguishing a true confession from a false one. The same approach is used in modern law enforcement, where a confession is validated by the fact that it contains information only a guilty defendant would have.

Both the Visigothic and the modern versions depend on the honesty of the people conducting the interrogation. A policeman who extracts a confession by either physical pressure or the threat of additional charges can make it more convincing by leaking the relevant information to the defendant in the course of the interrogation. That is an argument for recording all interrogations and making the recordings available to the defense, an option not available to the Visigoths. I do not know if they employed the period equivalent of neutral witnesses to the interrogation.

The problem with arguments for the use of torture, ancient and modern, is that although one can imagine situations where it would be justified, once legal it is not likely to be limited to such situations.

1. For details, including an argument in favor of the use of ordeals, see  Leeson, Peter, “Ordeals.”

2. In the U.S. in 2006, an estimated 1.2 million persons were convicted of a felony. If each of them had had a jury trial of 7.2 days the total would have been 8.6 million trial days. Assuming that courts function five days a week, 52 weeks a year, felony cases alone would have required the full time effort of 33,000 judges. Add in a few more for the trials of defendants who were acquitted. There are about 30,000 judges in the state judicial systems, and another 1,700 in the federal system.