“The Third Degree,” from Police Interrogation and American Justice, by Richard A. Leo

The Salvador Option

Police Interrogation and American Justice, by Richard A. Leo. Cambridge, MA: Harvard Univ. Press, 2008, pp. 41-77.

Police Interrogation and American Justice is a detailed analysis of modern police interrogation methodology in the United States. Although the book primarily addresses the constitutional implications of domestic law enforcement interrogation practices, the chapter on the origin and development of police torture in the US, entitled “The Third Degree,” provides important information about the evolution of American attitudes toward torture and sheds light on some of the salient characteristics of the interrogation system that would later be exported around the world by US military and police advisors during the first three decades of the Cold War.

Professor Leo defines the third degree as:

…not simply the infliction of pain or suffering to extract incriminating information but the creation of an environment in which police could inflict punishment and terror virtually without restraint. Its characteristic features are that it occurs during custodial detention, involves use of physical force or psychological duress, and is primarily intended to extort admissions and confessions.

For the first half century of law enforcement in the United States, police officers regularly employed the third degree in custodial interrogations, and criminal suspects were routinely convicted on the basis of confessions that had been extracted through physical or psychological coercion. Individual police departments across America developed their own third degree techniques and traditions, and they did so in the absence of any meaningful oversight from prosecutors or judges, who themselves were often willing participants in various aspects of their local third degree systems.

By the first decades of the 20th century, coercive interrogation techniques appeared to be an inherent part of American law enforcement and many police officials argued that it would be impossible to solve crimes without full resort to such practices. By this time, however, the public had begun question the morality and efficacy of police torture in the United States. Juries began to reject confessions they believed had been obtained through torture, and they increasingly questioned the veracity of testimony by law enforcement officers who denied that they had employed the third degree in the questioning of the defendant.

The response of the federal government to this public backlash was the Wickersham Commission, an investigative committee set up to study misconduct in law enforcement across the United States. The section of the commission’s report on the third degree laid the groundwork for the revolution in criminal procedure law that was to follow in the decades to come, culminating in the Miranda decision and other landmark cases delineating the constitutional boundaries of the custodial interrogation process. Although the third degree has never entirely disappeared from the American criminal justice system, the practice has been marginalized to a great degree by the threat of lawsuits and federal prosecution and can now only be employed in a very clandestine manner and with full knowledge that exposure would mean incarceration for all participants.

In his analysis of the evolution of coercive interrogation practices in America, Professor Leo makes several important observations about police torture that are relevant to an investigation into US support for state terrorism overseas. The first is that third degree interrogation systems invariably require the creation and maintenance of a clandestine detention process that allows interrogators to circumvent the legal procedures specifically intended to safeguard the constitutional rights of criminal suspects. For example, instead of bringing arrested suspects quickly before a judge or magistrate to have the arrest and charges reviewed as required by the Constitution, most jurisdictions employing the third degree secretly developed elaborate parallel arrangements in which suspects were shuttled from precinct to precinct for weeks at a time without any notice to the judicial system, a process known in Detroit as “sending a man around the loop.” Secrecy in this context means complete immunity from all of the customary and statutory restrictions placed on interrogators by the law, with enormously negative implications for the integrity and continued functioning of the public justice system as a whole.

Secrecy and impunity lead to the second observation made by Professor Leo about coercive interrogation, which is that the clandestine operation of a third degree system invariably “frontloads” the entire criminal justice process so that the investigation, trial, and punishment phases of an individual prosecution all take place inside the station house in the first days following the arrest, without any meaningful involvement from the branch of government intended by the Constitution to be central in the process from the opening stages. A covert detention/interrogation system pushes the judiciary out of the criminal justice process entirely, right at the stage when it is most important for the fate of the defendant and the establishment of the truth. The secret use of prolonged secret detention and third degree methodology effectively turns the administration of justice into a one-branch operation without any oversight from the branch of government specifically designed and authorized to manage the complex balancing act between the needs of law enforcement and the maintenance of individual rights.

The final result of a system grounded in secrecy and impunity, Professor Leo concludes, is a strain of lawlessness that degrades public institutions and undermines the lawful foundations of a civil society grounded in constitutional rights. The “goldfish room” in a Chicago police station and the photographed abuses at Abu Ghraib are both manifestations of systems that have removed themselves from any form of oversight or outside restraint through secrecy and the claimed exigencies of public duty. The limits on brutality are determined by the whims and individual moral limits of the participants, and all of the powers delegated to the judiciary to prevent such a state of affairs are without effect because the judicial branch has been physically eliminated from the process.

The historical influence of the third degree continues to permeate the American approach to interrogation, which to this day is surrounded by secrecy and loud assertions of the occasional need to “take the gloves off.” The third degree is not the sole basis of modern interrogation methodology in the US, but it forms one of the most important cultural roots for the American approach seen around the world today.

Article published here: The Salvador Option
URL: http://www.a-w-i-p.com/index.php/2012/06/27/the-third-degree-from-lemgpolice-interro


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