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Coerced Confessions: How the Plea Bargain Replaced Physical Torture

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In 2010, Chicago police commander Jon Burge was convicted on counts of perjury and obstruction of justice and sentenced to four and a half years in prison. Although he was convicted of lying under oath, his real crime was what he was lying about. Over the course of his career, he participated in or oversaw the torture of hundreds of suspects to coerce confessions for violent crime. The stories of Burge’s tortures—involving electroshock and suffocation, among other things—showed enough similarities between otherwise unconnected inmates that he went to trial in 1989. After a hung jury, the judge ordered a retrial, which never came. Over the course of the 1990s, more information about police torture under Burge’s leadership surfaced, but the district attorney refused to move forward with a new trial. Finally, after the statute of limitations had expired on Burge’s original indictment, the city brought in a special prosecutor, who pressed charges against Burge for perjury during his original trial.

After a short stint in prison, Burge retired to Florida, where he lived on a $4,000-a-month pension until his death in 2018. The legacy of his methods of extracting confessions still plagues Chicago, however, as cases continue to be reexamined—Shawn Whirl, the first of his victims to be exonerated after twenty-five years in prison walked free in 2015. In 1990, Whirl was arrested after his fingerprints were discovered in the back of a cab whose driver had been murdered (hardly damning evidence against a man who had no prior criminal record). When his case was finally reopened as one of the hundreds of victims of Burge’s police department, prosecutors refused to press charges as the original case had entirely been built on Whirl’s coerced confession.

“The Third Degree” and Adversarial Justice

Coerced confessions have a long history in American policing. In 1845, several urban centers began the transition away from private law enforcement with the establishment of city-run police forces and district attorneys. This change marked a transition out of the traditional justice system, in which disputes were brought by private citizens and prosecuted by private lawyers, and order was maintained by voluntary citizens serving as night watches or constables, not unlike a modern neighborhood watch.

Over the ensuing decades, government-run police forces and prosecutors spread throughout the country, and a new system of criminal justice developed. Unlike in the previous system, police were charged with bringing people to trial for crimes regardless of whether or not another citizen initiated the dispute. To gain a conviction, the police had to gather evidence—a job previously left to the private attorney serving as prosecutor—but forensic science was in its infancy and police obtained their jobs through political connections and patronage rather than qualification. The easiest way to obtain a conviction, then, was to extract a confession. Since few criminals are willing to confess voluntarily, police began to resort more regularly to beatings and other tortures until a suspect signed a confession. By the 1880s, accusations of police tortures were widespread.

With coerced confessions more common, new language emerged to describe the methods. One early euphemism for police torture was “sweating,” which originally referred to a specific—and popular—method of torture in which a person was confined to a small sauna and deprived of water, though the term “sweating” eventually came to refer to general methods of violent interrogation in the police lexicon. The slang failed to stick, though, as a softer euphemism—the “third degree”—gained greater currency.

Methods of giving suspects the third degree varied widely between police forces. Some methods were more physical, ranging from simple beatings to electric shock (when the technology became available). Other methods were more psychological, usually aiming to induce fear, such as when police officers doused a fifteen-year-old suspect in gasoline, lit a match, and threatened to light him on fire if he did not confess his crime. Other psychological methods, usually imposed on the spouses of suspects, was to traumatize people with the brutalized remains of murder victims or other similar experiences. One suspect in a dual murder case was compelled to stand silently for twenty minutes while wearing the blood-drenched vest of the male murder victim while holding the blood-stained dress of the female victim in his left hand and the bible in his right.1

These methods were conducive to the new “adversarial” system of justice, which placed primary value on a guilty verdict and, by extension, on the confession. Traditional inquisitorial justice—common in European history—considered more than mere guilt when deciding the fate of a criminal, and this tradition remained in private community judicial systems. With the formalization of government-run police and prosecution, however, objective guilt in violation of uniform law took primacy and confession simplified the process of obtaining evidence and presenting a case. Torture was the easiest way to obtain a confession.

Reform and Centralization

Eventually, people came to question the reliability of coerced confessions and the ethicality of such methods of interrogation. Police defended their tactics by raising the specter of rampant criminality. When state supreme courts began to occasionally overturn convictions based on coerced confessions, police defenders raised accusations of “shyster” lawyers who made easy profits taking advantage of legal “loopholes” to free criminals, returning dangerous people to respectable society. References to a “criminal class” entered the debate, and the proliferation of cheap fiction fanned the flames with sensational tales of violent criminals.

Municipal and state prosecutors and judges, of course, had little incentive to push back against coerced confessions. Just as with modern plea bargains, confessions lightened their workload considerably. Even when states passed “anti-sweating” laws and other statutes against coerced confessions, judges routinely ignored them and prosecutors refused to press charges against cops who violated the law.

Alcohol prohibition dramatically increased these problems, as local police and state courts were tasked with enforcing a sweeping federal law that, overnight, turned millions of previously law-abiding citizens into felons. With courtrooms packed and police facing a larger criminal population, the efficiency of coerced confessions spurred a greater toleration of the practice. This led to a greater outcry against the criminal justice system, compelling prohibition advocates to pressure the new president, Herbert Hoover, to fix policing before it undermined prohibition. Hoover responded with the Wickersham Commission.

The Wickersham Commission—formally titled the National Commission on Law Observance and Enforcement—was part of Hoover’s larger ambition of centralizing and modernizing law enforcement in the United States. One important outcome of the Wickersham Commission was the collection of national crime statistics. National statistics, which mostly reflect large urban areas, were a tool that demagogues and politicians would use to inflame scares of “criminal epidemics” and consequent increases in the carceral state by giving the impression of crime epidemics in otherwise peaceful communities.

But the commission also devoted a full report to police torture, titled “The Third Degree.” In this report, the commission excoriated local police forces for their common recourse to torture to obtain confessions. Although the report recommended reforms to state and city laws to prevent coerced confessions, many politicians resisted. When New York passed an anti-third-degree law—one of the few states to do so in response to the commission—New York City mayor Fiorello La Guardia said that the law was a “Magna Carta” for “punks, pimps, crooks, gangsters, racketeers and the shyster lawyers.”2

To help nudge local police forces in the right direction, J. Edgar Hoover set up the Scientific Crime Detection Laboratory for his Bureau of Investigation (soon to be renamed the Federal Bureau of Investigation) and set the example for modern policing with forensic science. With the use of new technologies, the third degree could be rendered obsolete. Of course, the use of these new methods of investigation required training, equipment, and staff, and this meant substantial increases in police budgets. In this way, the outcry against police torture inadvertently supported the growth of police at both the national and local levels.

Prosecutors and Plea Bargains

The use of the third degree did not die with the birth of forensic science, as the case of Jon Burge demonstrates; however, it did mark the end of any public defense of police torture. States were no longer so reluctant to pass antitorture laws, and the federal supreme court issued a series of rulings that extended the Bill of Rights to the states, including the 1936 case Brown v. Mississippi, which ruled coerced confessions unconstitutional and inadmissible even in state criminal trials. The federal government now claimed regulatory power of state and local criminal justice systems.

But even if violent confessions declined, coerced confessions have merely taken a new form. As state legislatures took over much of judges’ sentencing power, they set guidelines for sentencing that constrain judicial discretion. Because prosecutors retain discretion over what charges to file—complete with an expansive list of felony categories that did not exist during the early days of coerced interrogations—district and state attorneys can threaten harsher charges against a defendant in order to convince him to take a plea deal. Although this may not be as visually shocking as dousing a teenager in gasoline and threatening to light him on fire, the use of fear to obtain criminal confessions continues the long tradition of the “third degree.”

  • 1. W. Fitzhugh Brundage, Civilizing Torture: An American Tradition (Cambridge, MA: Harvard University Press, 2018), 212–13.
  • 2. Fiorello La Guardia, quoted in Brundage, 241.



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Economy

10 Sunday Reads

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A note about Sunday reads: Normally, these are a cross section of policy, investing, economics, technology, arts, sports, etc. But these are not normal times, with the news is dominated by Coronavirus and the botched U.S. response to it.

Rather than let these Sunday reads become an exercise in negativity, they are now in two parts: Part 1 are upbeat, positive links to get help you get through these difficult times; Part 2 are the news stories of incompetence and corruption. Those negative now will get pushed below the jump. Read them, skim them, skip them entirely: your choice. Above all, stay safe! 

~~~

My easy like Sunday morning reads:

• FAQ: Coronavirus unemployment guide: What to do if you get laid off or furloughed (Washington Post)
• Millions Are Suddenly Working From Home. Can They Claim a Tax Break? (Wall Street Journal)
• The Cuomo brothers put on quite a show. (Washington Post)
• This Time is Different (The Belle Curve)
• How to Have a Social Life While Practicing Social Distancing (Real Simple) see also Apart, together (The Bellows)
• These Coronavirus Exposures Might Be the Most Dangerous (New York Times)
• Streaming spikes during pandemic lockdown (Axios)
• A Forest Submerged 60,000 Years Ago Could Save Your Life One Day (New York Times)
• Three shifts at the Scrabble factory: The inventor (VT Digger)
• (LOL) How to Buy a Private Jet (Worth)

Be sure to check out our Masters in Business interview this weekend with Jonathan Miller (of Miller Samuel), discussing the impact of the Coronavirus pandemic on the national real estate industry.

 

Randall Bell’s Bell Disaster Index Shows We Will Survive

Source: LinkedIn h/t Jonathan Miller

 

Sign up for our reads-only mailing list here.

 

 

 

Avert your eyes! My Sunday morning look at incompetency, corruption and policy failures reads:

• The Cult Comes for Dr. Fauci (The Bulwark)
• It’s a sh– sandwich’: Republicans rage as Florida becomes a nightmare for Trump (Politico)
• Joe Biden, January 2020: Trump has weakened our capacity to deal with coronavirus (USA Today) (But I was told nobody could have seen this coming?)
• Excuses (Popular Information)
• How Tea Party Budget Battles Left the National Emergency Medical Stockpile Unprepared for Coronavirus: Fiscal restraints imposed by Republicans in Congress in the early years of the Obama administration left the U.S. less prepared to respond to the coronavirus pandemic today (ProPublica)
• Inside the coronavirus testing failure: Alarm and dismay among the scientists who sought to help (Washington Post) see also As Trump declared coronavirus under control, local leaders faced confusion and chaos as cases piled up (Washington Post)
• Taxpayers Paid Millions to Design a Low-Cost Ventilator for a Pandemic. Instead, the Company Is Selling Versions of It Overseas. (ProPublica)
• Authoritarian Populists Have Six Classic Moves. Trump’s Response to COVID-19 Uses Five of Them. (The Atlantic)
• DHS wound down pandemic models before coronavirus struck: A vital modeling program was sidelined amid a bureaucratic battle, former officials say, leaving U.S. less prepared to face the virus (Politico) see also U.S. axed CDC expert job in China months before virus outbreak (Reuters)
• The Military Knew Years Ago That a Coronavirus Was Coming (The Nation) see also ‘Inside the National Security Council, a rising sense of dread (Politico)

 

Be sure to check out our Masters in Business interview this weekend with Jonathan Miller (of Miller Samuel), discussing the impact of the Coronavirus pandemic on the national real estate industry.

 

Trump’s 75th Fox interview as president

Source: Washington Post

 

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The post 10 Sunday Reads appeared first on The Big Picture.



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Q&A

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QUESTION #1: Dear Martin,

Could you offer a comment on how these increases in deaths can affect the latest predictions that you and Socrates offered? Will we still have the sling effect? Even with reduced liquidity, with millions unemployed, with the economy in a state of war, is the Dow Jones able to react and find the strength to rise?
how will the emerging countries be?

how can the dollar remain strong with more than 5 trillion to be injected and with the cancellation of the euro preventing the flight to the dollar?

I agree with your comments on the great farce and that afterward they will be small numbers of sick people compared to other diseases, but what would you do at a time like this where the smell of death and the tears are multiplying?

How can we move forward if hospitals are full and have no vacancies for those who need respirators?
Please update us at this moment so dramatically.

Thanks,

S

ANSWER: The transformation of the Euro to digital will not impact the dollar negatively, but has the risk of driving it higher. Even in Japan when the government lost the ability to even issue money for 600 years, people used Chinese coins and bags of rice. As for the increase in deaths, I have first-hand info that this is also being contrived. Elderly people are dying from the flu and they simply put down the Coronavirus. We still show the trend should top out this week. Nevertheless, it is still 1/10th of those who die from the flu. Hospitals are not full. The virus will run its normal course. It peaked in China in less than 30 days. It has already peaked in Italy on March 20th. Any claim that it continues beyond this week of April 6th is bogus and fake. Even New York Gov. Andrew Cuomo, who many see as trying to be in the running to be drafted for the Democratic nominee came out and confirmed that the number of deaths may be declining. My bet is on Socrates. It has not bee wrong yet.

In Europe, SPD leader Norbert Walter-Borjans (Socialist) called for the European Stability Mechanism (ESM) to be used as a crisis aid, but in the long term to use Eurobonds. “I am in favor of Eurobonds, but the seriousness of the situation leaves us no time for principle riding. It looks as if consent can be obtained that the ESM can be used without the frowned upon requirements,” said Walter-Borjans in an interview with the newspapers “La Repubblica”, “Il Messagero” and “El Pais”. In other words, we have the Socialists claiming emerging powers to circumvent democratic processes.


QUESTION #2: Is it possible that the markets don’t recover this year? Given the craziness will people trust anything at all?  I wonder if this virus thing is what you described in your report about herd mentality–everyone is scared and paralyzed?    Will this create the energy for any type of bounce back?  or is a society just doomed?  What good if the markets recover if everyone is out of work?  Money won’t be good since society will be turned back into the stone age.

ANSWER: We are running Socrates on all inputs. So far, it still shows a 2nd quarter low. Note also the forecast I have been touting for the past 6 years at least that this new wave would be an inflationary one driven by SHORTAGES in agriculture. The first major producers of staple foods such as wheat and rice have restricted exports. Although there is enough food in the world, supply bottlenecks and rapidly rising prices are threatening in some regions. In Germany, there may be bottlenecks with certain types of vegetables and fruits. However, with transportation shut down to prevent the virus from spreading, this is also impacting agriculture. Socrates forecasts the trend. It does not sort out the fundamental causes behind those trends. There is a clear distinction between the two.


QUESTION #3:  Dear Martin,
as a retired bond dealer and fund manager I subscribe to your Facts of socialism against
capitalism –but couldn`t it be that some Ultra RICH ( companies ) have the idea to Profit from this fight by buying up the whole shop for Peanuts if f.instants the Indices are
crashing down to a 1/10 of the current value —THAT WOULD BE A CAPITALISTIC POWER GRAB? -Like in Formula ! you surpass your Opponent out of the wind shadow.
KEEP UP THE PRESSURE –TKU for your work

PZ

ANSWER: This is far greater. Forcing a company’s share down to buy cheap is an old ploy as we both know. But this is a play to undermine the entire economy for political gain. Every socialist political party is pitching this to be the worst disaster warranting emergency powers. This goes beyond that for the very players are losing even Warrant Buffet lost $80 billion in market value on by March 23rd. If the socialist seize control of the economy, even the capitalist will lose. The rise of Eurobonds in a free market means that the outstanding negative $12 trillion in individual government bonds will crash. There go the pension funds.



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Coronavirus job losses for the past two weeks could match two years of the Great Recession’s job losses: Estimates of new claims filed are 10 million

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In the last two weeks, Americans have experienced a net loss of jobs on scale with the two years of job losses in the Great Recession.

Thursday, the U.S. Department of Labor (DOL) reported that a record-breaking 6.6 million Americans filed new claims for unemployment insurance benefits in the week ending March 28, doubling the prior week’s 3.3 million, an eye-popping record that lasted only a week. New claims in each of the last two weeks dwarf any prior week in over 50 years of weekly data (Figure A).

Figure A

In the two weeks ending last Saturday, about 10 million Americans filed new claims for unemployment insurance. For a sense of scale, the Great Recession reduced total number of U.S. jobs by 8.7 million through 2 years of losses, from 138.4 million in January 2008 to 129.7 million in February 2010. The share of adults employed is now almost certainly below its lowest level since the start of the Great Recession.

Based on Americans’ internet search activity through the first three days of this week, our model predicts that, next Thursday, DOL will report that another 4.7–5.7 million Americans filed new claims in the current week ending tomorrow.

The Great Recession and the current one unfolded very differently. During the Great Recession, job separations—the sum of quits, firings, and layoffs—actually slowed (Figure B: dashed line) but hiring slowed even more rapidly (Figure B: dotted line). In any time period, the difference between the number of separations and the number of hires equals the net change in the number of jobs. Over those two years of net losses, 55.9 million Americans filed new claims for unemployment.

Figure B

Figure B

Throughout the Great Recession, new hires counterbalanced a large share of the job losses in any month.

The current labor-market shock is happening differently. It’s not driven primarily by a hiring slowdown but by skyrocketing layoffs. Hiring appears to be slowing as well, along with posted openings, though this is more difficult to observe and slower to show up in any official sources. A simple approximation implies that there may have been as many as 2 million hires over the prior two weeks, implying a net loss of at least 8 million jobs.

These job losses are happening across every state. Table 1 describes the official reports of new claims over the two weeks ending March 28 for each state and for each week separately. Applying the national seasonal adjustment factors would raise these by about 14%. Many states’ UI administrators are struggling to keep pace with the huge surge in demand, which is leading to intake, processing, and reporting challenges. And not everyone who loses work has tried to file for unemployment. So the true scale of labor income loss is undoubtedly larger than even these huge numbers show.

Table 1

Table 1

The surge in new claims was not a surprise, but the magnitude is enormous. Americans started searching for the phrase “file for unemployment” at unprecedented rates a couple of weeks ago, as the broad quarantines started and layoffs followed. Search activity rose again last week, above the record high levels of the prior week, as shown in Figure C.

Figure C

Figure C

Figure D shows the intensity of search activity by state in the last week, on the vertical axis, against intensity in the prior week, on the horizontal axis. It shows that search intensity increased in many states.

Figure D

Figure D

The federal government is the only entity in the country with the borrowing capacity to help families losing massive shares of their income through no fault of their own, as necessary to preserve life and ensure a speedy recovery. Given our failure to stand up wide-scale testing, we cannot distinguish who can work from who requires care and our only option for saving lives is indiscriminate social distancing. We had to put the U.S. economy into a medically induced coma. Without life support systems pumping resources where they need to go, vital parts of our economy will start to fail, diminishing our ability to quickly and smoothly revive.

We must address the public health challenges with every productive resource available, while also preventing families’ finances from deteriorating into desperation. It’s not about stimulus. It’s about survival.



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