Over the past couple of years, the visibility of police brutality and criminality has attracted heightened attention from scholars, the media, and the American public.
Although police crimes are far from a new phenomenon, our focus has never been more attuned to how often those entrusted with our security are violating it.
Along with this increasing awareness of police criminality, there has been a round criticism of the way police suspects are investigated (or not), charged (or not), convicted (or not), and punished (or not).
Critics charge that police often appear to be above the laws they are tasked with upholding.
As a result, commentators and scholars have begun to call for eliminating the advantages police suspects enjoy; they want more criminal accountability for police.
Most of the attention to preferential treatment has focused on prosecutors’ decisions not to bring criminal charges against police for acts of brutality or on prosecutors’ use of grand juries to exculpate police.
Yet this prosecutorial favoritism is just one of a number of special procedural protections police suspects receive. In fact, a potentially more problematic set of procedural advantages emerges from special interrogatory shields that many local governments and some state legislatures have erected known as Law Enforcement Officers’ Bills of Rights (LEOBORs).
LEOBORs take the form of state statutes or negotiated jurisdictional agreements and provide affirmative interrogation protections for police suspects that go far beyond the Fifth and Fourteenth Amendment protections that other suspects receive. For instance, LEOBORs often provide that police suspects may be questioned only during the day; that they may be questioned only by a limited number of interrogators; that they must be given time to attend to their personal needs; that they may not be threatened, subjected to abusive language, or induced to confess through untrue promises of leniency; and that their choice to inculpate themselves must not be conditioned on losing their job or benefits.
LEOBORs represent the formal procedural protections police demand when they are accused of and questioned about wrongdoing. As such, they are an important and heretofore overlooked tool for better understanding and potentially reforming interrogation law.
In combination with other procedural advantages police suspects receive, LEOBORs both tell an ugly story of insider favoritism and present a possible roadmap for reforming critical aspects of our criminal justice system.
Police suspects’ insider status makes LEOBORs both a threat to the criminal justice system’s legitimacy and at the same time an important lens through which to reconsider confession law. This Article aims to further the nascent awareness of the criminal justice system’s preferential procedural treatment of police suspects by examining LEOBORs and contrasting them with the laws that protect other criminal suspects. In doing so, it adds another dimension to the already rich literature on policing,
as well as to the existing literature on bias among criminal justice insiders.
It locates police within a small group of criminal justice insiders who understand and drive our increasingly opaque system.
This Article argues first that formal criminal procedure preferences for police suspects threaten the legitimacy of the criminal justice system in several ways. Additional interrogatory process for police threatens the idea that criminal procedures are distributed fairly,
sullies the appearance of fairness in the criminal justice system,
and by doing so, lessens the system’s ability to encourage cooperation with the law.
The criminal justice system’s insider-driven operation,
as well as bias on the part of legal authorities, are among the biggest threats to criminal law.
Thus, self-dealing among criminal justice insiders is among the most salient illustrations of how legal authorities undermine the system they enforce.
But what results should flow from this conclusion? This Article’s second argument is that our response to these procedural inequalities should be to extend certain of these formal interrogation protections to all suspects rather than to strip them from the police.
In doing so, this Article upends the dominant response from scholars and politicians that LEOBORs and other procedural preferences for police suspects should be abolished to ensure equally harsh treatment for all suspects.
It argues instead that by examining the systemic favorable treatment of police, we can map out a fairer, more accurate, and more workable system of justice for other defendants.
In fact, this Article examines LEOBORs with an eye to what the criminal justice system gets right about police suspects that it so often gets wrong in the context of other suspects.
Several criticisms of police-suspect leniency dovetail with scholarship calling for more protective measures for civilian criminal suspects. For example, while many have critiqued prosecutors’ decisions not to charge police, others have called for more systematic decisions not to charge in other categories of cases.
And while some are outraged at the perceived use of grand juries to exculpate police defendants,
others have called for strengthening the use of grand juries for all defendants.
Similarly, while some may bristle at LEOBORs,
these statutory rights mirror or exceed many of the procedural protections that scholars have urged for years be extended to nonpolice defendants.
Protections that police receive have the potential to aid the most vulnerable suspects and to reduce the alarming number of false confessions that have recently come to light through studies of exonerations.
As the negotiation preferences of those who interrogate daily, these protections for police should not be reduced or repealed without careful consideration of how they might apply more broadly. To do so would be to ignore an important opportunity for criminal justice reform.
This Article proceeds in four parts. Part I establishes why examining police defendants’ preferential procedural treatment is important. It draws on current scholarship regarding the disconnect between criminal justice insiders and outsiders to show that an inquiry into special procedures given to insiders has much to tell us about the criminal justice system’s problems and its potential. It argues that examining these practices furthers our understanding of how the criminal justice system operates favorably for insiders and creates distrust from outsiders.
Part II focuses on interrogation protections for most suspects and contrasts them with the added protections police receive from LEOBORs. First, it sketches the constitutional doctrine that aims to protect suspects from interrogation and the problems with these weak, negative rights—including both the favoritism of sophisticated suspects and the use of coercive but legal police tactics that may lead to false confessions in a disturbing number of cases. Next, it identifies the specific affirmative protections that police officers afford themselves when they are the subjects of interrogation. These formal interrogation protections that police negotiate or lobby for in LEOBORs are protections from the very techniques they use to investigate and induce confessions from nonpolice defendants.
Part III argues that special formal protections for police suspects raise numerous systemic problems, particularly in combination with the other procedural advantages police appear to enjoy. It identifies at least three serious harms. First, these distributional advantages undermine a core goal of constitutional criminal procedure by virtually inverting the relationship between a suspect’s sophistication and the protection she receives. Second, giving special rights to police, who are among the most sophisticated suspects, sullies the appearance of justice, a principle applied mostly to judges,
but one that should also be considered when thinking about the police because of how important these agents are to the criminal justice system’s legitimacy.
Finally, it argues that self-dealing by and special treatment for law enforcement suspects are particularly salient examples of how criminal justice insiders negatively affect procedural justice and threaten the normative value of the criminal law.
Part III also addresses the possible objection that police deserve special procedural protections because of their status as law enforcement officers.
Finally, Part IV wrestles with the issue of whether the procedural rights granted to police should be nullified in order to make the system harsher toward police but more equally distributed or extended to other criminal suspects to increase the fairness and accuracy of the system more generally.
Returning to the theme of criminal justice insiders, it argues that examining what procedures police suspects negotiate for in anticipation of becoming potential suspects is an invaluable lens through which to view the criminal justice system. LEOBORs possess features that are uncommon to most criminal lawmaking: They are drafted by insiders who know how the system operates and by insiders who, perhaps more significantly, imagined themselves as criminal suspects.
This Article selects among the provisions those that should be extended based on two independent (but often interrelated) principles.
First, certain rights should be extended because they also represent protections against tactics that studies show tend to coerce vulnerable suspects and that exoneration literature tells us lead to false confessions. Second, certain other rights may have little to do with whether or not one falsely confesses but are a floor below which we should not allow any government official to fall in her treatment of another person, particularly one who still retains the presumption of innocence.
After identifying the provisions that should be extended, this Part proposes two methods for effectuating these changes in confession law. One way to extend rights is through legislative action, and the other is through judicial consideration at the suppression and appellate stages of criminal litigation. Finally, this Article considers the systemic benefits that would flow from such an extension and addresses possible counterarguments to these proposals.
I. Insider Suspects
This Part establishes why looking at special protections for police suspects is a particularly salient area of scholarly inquiry. First, it establishes the opacity of our current criminal justice system, locating police as among a small group of insiders who understand and drive a system that is increasingly unknown to those on the outside. Given their special place in the criminal justice system, the preferences police either negotiate or lobby for are at once problematic examples of inside favoritism and tools for reshaping certain aspects of our criminal justice system. On a larger scale, this Part establishes the idea that studying what those insiders in the criminal justice system want for themselves gives outsiders rare and valuable insight for reforming the system more generally.
The mostly unacknowledged procedural favoritism police suspects receive fits into a larger story about the problematic culture of criminal justice insiders. Recent criminal justice criticism has uncovered several problems that stem from the bureaucratic professionalism of the system.
Some of these problems include a lack of transparency, lack of participation by ordinary citizens, and lack of accountability for police and prosecutors.
Due to the immense body of legislated criminal law, an outsized portion of decisionmaking authority has fallen to the discretion of prosecutors and the police.
Meanwhile, popular participation in criminal justice, through jury participation and accountability measures like elections, has fallen away.
The criminal justice system is an increasingly opaque, unaccountable machine, known only to those “insiders”—legislators, prosecutors, defense attorneys, and police—who pursue cases based on their own political, moral, and professional preferences.
This system leaves the rest of us—defendants, victims, members of the public, and legal scholars—out, not only as participants in the system, but even as observers.
The opacity of the criminal justice machine leads to at least two interrelated problems. First, it allows criminal justice professionals to operate in a largely unknown and therefore unchecked sphere, meting out justice according to their own pressures and incentives and without taking larger social concerns into their arrest, charging, and plea bargaining decisions.
Second, the shrouded and seemingly arbitrary way in which criminal justice appears to be distributed undercuts the very purpose of our criminal justice system—to encourage people to obey the law.
Police are central players in this group of unchecked insiders who control power and knowledge in the criminal justice system.
In key ways, police control the criminal justice system more than other insiders do. For instance, the rise in misdemeanor arrests and citizen encounters with jails and courts can be traced directly to police policies and discretion.
And as the “public face” of the criminal justice “machine,” interactions with police are often the only part of the legal system that an arrestee encounters. Many suspects accused of low-level crimes are issued a ticket by the police and do not see other actors in the system.
Such suspects also lose out on the constitutional rights and procedural protections that later stages of the process provide.
Therefore, police decisionmaking is the criminal justice system for an increasing number of citizens.
Police, then, are among a very exclusive group of criminal justice insiders. What it means to be an insider is critical to understanding why police suspects and defendants matter. Being an insider means possessing knowledge about how an opaque system operates. Police “know the kinds of crimes, defendants, and sentences that dominate the justice system. They understand the intricate, technical rules that regulate arrests, searches and seizures, interrogations, discovery, evidence, and sentencing, as well as the going rates in plea bargaining.”
And being an insider means, to some extent, having control over how laws are written and enforced. As such, police officers are “a very powerful lobby on criminal law issues.”
Police do not lose their insider knowledge or status upon becoming criminal suspects. In fact, the knowledge they have and relationships they form as a result of their insider status can appear to make them virtually above the law because their crimes are both so rarely reported
and so rarely prosecuted even when they are reported.
The following parts of this Article show that police receive formal procedural advantages through negotiated and statutory investigative protections from interrogation tactics.
Why does such preferential treatment for police suspects matter? It matters for at least three reasons. First, because it violates one of the core foundations of our criminal justice system: that suspects and defendants receive at least as much procedural equality in treatment as possible.
The current state of interrogation protections gives the most rights to among the most sophisticated suspects.
Second, this preferential treatment leads those outside the justice system to doubt its legitimacy, which may make them less likely to respect or follow the criminal law.
Finally, the menu of preferences police receive may assist criminal justice reform because it shows what those who possess specialized knowledge and power within the system get and demand when they imagine themselves as criminal suspects.
The notion that those with knowledge and control will, without checks, do everything they can to maintain their favored status is an old tale.
Indeed, constitutional criminal procedure itself is based in large part on the principle of avoiding this sort of favorable treatment for some.
It would not be a stretch to argue that most views of how a fair criminal justice system operates are predicated on the notion that criminal defendants should be treated as equally as possible, at least as to the procedural rules that govern their trek through the system.
While the constitutional criminal procedure revolution has been much maligned in recent years,
few would disagree with the concept that equality was the animating principle that motivated the Warren Court, which was responsible for the extension of numerous criminal procedural rights to all suspects.
Recently, the notion of the importance of equal distribution of criminal procedures to the legitimacy of the criminal justice system has been strengthened by the empirical work of Professor Tom Tyler and others. These scholars show that when citizens do not trust the justice system, they have less incentive to follow the law. Moreover, they show that the way people are treated by system actors has as much of an impact on the way they feel about the system as the substantive outcomes of their cases.
While much of the work focuses on the interactions citizens have with particular criminal justice actors—police and judges—it also shows that people feel that the criminal justice system is more legitimate when procedures are distributed equally and when law enforcement officials appear unmotivated by bias for or against certain groups.
In other words, the preferential procedures that police defendants receive are problematic from the perspective of the way criminal procedure is designed to work. These defendants’ preferential treatment offends the appearance of impartiality, and this has negative effects for the way people view the law and the legitimacy of the legal system.
There are at least two ways to resolve the problem of preferential procedural protections for police.
The simpler, perhaps more intuitive, avenue is to take away the systemic favoritism that works in favor of police suspects. In particular, for purposes of this Article, this means abolishing LEOBORs entirely.
The second, more conceptually and practically difficult, solution is to extend some of these protective mechanisms to other criminal defendants. This is the path this Article recommends because police officers’ negotiated preferences are a valuable tool for understanding how interrogations work and how they should work.
Police suspects receive the benefits of procedural preferences gained through their intimate knowledge of how the criminal justice system works and how they can best shield themselves from its operations. Police are the interrogators: They know exactly what tactics are most likely to induce a confession, whether truthful or not. Their LEOBORs reflect this knowledge.
At first blush, the notion that experts have designed procedures for themselves when they imagine themselves as the object of interrogation may lead to a swift conclusion that these preferences are the product of unfair self-dealing.
One might well see the appearance and legitimacy problems they create and insist that they be eradicated.
This Article argues instead that the interrogation rights provided by LEOBORs are a politically feasible and informative starting point to reimagine interrogation protections that are more sophisticated,
in addition to being more in line with our current notions of humane treatment of those who are suspected of violating the criminal law.
In fact, the interrogation protections that flow from police suspects’ very “insiderness” are a way to reinvigorate the debate over how to protect criminal suspects, among the least favored groups in our society.
II. Formal Protections for Police from Police Interrogation
Part I established why looking at the way law enforcement officers, as criminal justice insiders, want to be treated when they become criminal suspects can lead to a better understanding of the usually opaque world of criminal justice. This Part focuses more closely on the specific, formal procedural preferences police suspects receive from the Supreme Court,
as well as from LEOBORs. Recently, criticism has begun to focus on how these protections unfairly skew the criminal justice system in favor of police suspects.
Yet the umbrella of protections provided by most of these formal rights are more detailed and yield far more insight than recent commentary allows. In fact, numerous scholars have argued for decades that criminal suspects’ panoply of rights do not sufficiently protect them from coercive interrogation tactics.
The tactics they allude to are among the very same ones disallowed by LEOBORs.
This Part argues that the formal interrogation protections police suspects receive protect them from a host of investigative techniques that are considered part of the “playbook” when it comes to interrogating nonpolice suspects. It first discusses current Fifth Amendment and Fourteenth Amendment protection for nonpolice suspects and notes that police officers, as the most sophisticated suspects in the interrogation context, are already at an advantage over other suspects. It then turns to the added layer of affirmative protections police have negotiated or lobbied for themselves.
The first section in this Part describes the well-trod constitutional rights that are meant to protect criminal suspects from coerced confessions. It then shows how police are already perhaps the most advantaged suspects when it comes to interrogatory protection because they are typically the interrogators. The next subpart will show that their additional affirmative protections further invert the purpose of constitutional protections by giving already sophisticated suspects an extra layer of rights that the rest of us do not receive.
A. Constitutional Confession Law Favors Sophisticated Suspects
Two strands of Supreme Court doctrine determine whether a confession is admissible. First, any suspect who has been arrested must be given notice of certain constitutional rights. Miranda warnings, based on the eponymous and famous case, include the right to remain silent, the right to an attorney, and notice that any statements made to officers can be used against a suspect in later proceedings.
Both of these doctrines favor sophisticated suspects, usually wealthy, educated or recidivist interrogees, over unsophisticated suspects, often young, mentally ill, or mentally disadvantaged interrogees.
Miranda is among the most hotly contested Supreme Court criminal procedure rulings.
For the purposes of this Article, a couple of the critiques are particularly apt. First, Miranda applies only in strictly denominated “formal” interrogations, allowing law enforcement officers to question suspects without advising them of their rights in a host of situations that may lead an unwary suspect to confess.
Second, and perhaps most relevant, most suspects waive their Miranda rights.
Some, of course, do so because they desire to make a truthful confession to a crime they committed. But many others do so for a host of reasons that do not lead to the conclusion that their confessions are the product of a voluntary waiver of rights.
The second strand of doctrine is the voluntariness test, which courts use at suppression hearings to determine whether, given the “totality of the circumstances” a confession is admissible.
This test, according to the Supreme Court, balances “the complex of values implicated in police questioning of a suspect.”
On one side of the scale is the notion of the “need for police questioning as a tool for the effective enforcement of criminal laws.”
Without wide latitude for police questioning, “the security of all would be diminished.”
On the other side are a far more nebulous “set of values” that reflect “society’s deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice.”
Thus, ensuring that a statement is voluntary “‘enforces the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.’”
In reality, the voluntariness standard puts almost no restrictions on what police may do to induce a confession. The Court has not held any tactic in and of itself unconstitutional, short of physically beating a confession out of suspects,
isolating them for sixteen days before interrogation,
or interrogating them for thirty-six hours straight.
Importantly, the voluntariness test requires no specific protection from types of questions, the setting of an interrogation, the length of an interrogation, the number of interrogators, or any other specific type of interrogation technique.
Indeed, courts have routinely held that economic duress,
sleep deprivation combined with middle-of-the-night questioning,
refusal to allow basic physical necessities,
lies about the severity of charges or evidence in the case,
threats to family members’ welfare,
inducements in the form of leniency or other promises,
and other forms of psychologically abusive behavior do not render confessions involuntary.
A particularly salient critique of the constitutional protections governing interrogation is that they favor sophisticated suspects over more vulnerable ones. Critics of Miranda have argued for decades that the warnings are incomprehensible for a large number of suspects. For instance, former public defender Professor Charles Ogletree wrote that “notwithstanding the warnings, [his clients] believed either that their silence could be used against them as evidence of guilt or, more frequently, that by remaining silent they would forfeit their opportunity to be released on bail.”
Additionally, studies have shown that many defendants lack the reading proficiency to understand Miranda warnings delivered in written form, which requires roughly a tenth-grade reading level.
Very few suspects understand or invoke their Miranda rights,
and the voluntariness test rarely leads to suppression.
Such a state of affairs results in the unintended inversion of the goal of the Court’s Miranda ruling—encouraging guilty suspects to confess while ensuring that all suspects know their rights. Instead, “sophisticated suspects have a right to be free from questioning altogether—not simply free from coercive questioning—while unsophisticated suspects have very nearly no protection at all. The first group receives more than it deserves, while the second receives less than it needs.”
Even those who believe that the current state of regulation is adequate anticipate that suspects have a sophisticated understanding of the criminal justice system. Arguing that the right to remain silent “helps only the guilty,” Professor Stephanos Bibas posits that suspects confess for several positive reasons: “[M]any . . . know that they will be convicted [and] . . . gain important benefits from early confessions,” including “downgrade[d] or drop[ped] charges,” “mercy at sentencing,” and “speed[ing] up their post-sentence moves to long-term confinement” because “jails . . . are often less pleasant than . . . prisons.”
If it is true that a large number of suspects do confess for such reasons, these suspects must be quite sophisticated, at least in their knowledge of the criminal justice system. They must understand the “benefits” they will obtain for confessing early, both from prosecutors in terms of charge reduction and from judges in terms of more lenient sentencing. They must understand the difference between prison and jail and the tradeoffs between asserting their constitutional rights and a quick resolution to their case. The picture painted here is of a sophisticated, repeat-player suspect who makes rational choices unaffected by the inherent coerciveness of arrest and interrogation.
Similarly, more sophisticated suspects are less likely to fall prey to interrogation techniques that might lead to an involuntary or even false confession. This protects “savvy suspects . . . defined by either wealth or . . . experience dealing with the system, something that recidivists naturally possess.”
By contrast, “vulnerable suspects, which includes those with the least experience dealing with the system, are helped, if at all, only indirectly.”
These results have been the basis for much criticism of confession law from a distributive perspective.
A large majority of suspects either answer questions in non-Miranda settings or waive their rights.
Modern police training teaches detectives how to use psychological techniques, including threats and promises, to induce a suspect to confess.
Studies have shown that young, mentally disadvantaged, and mentally ill suspects are far more susceptible to the trickery, inducements, and threats that constitute the interrogation playbook than their older, mentally well counterparts.
The number of false confessions that judges have refused to suppress among these vulnerable groups belies the notion that a reviewing court will be able to sort out these suspects from others.
Simply put, trial judges and reviewing courts are loath to suppress damning evidence without a clear showing that a confession was obtained through brutal tactics. Thus, confessions are rarely suppressed based on either the suspect’s susceptibility or the officer’s interrogation techniques, particularly once Miranda rights have been provided and waived.
Even if the truthfulness of a confession is not in question, the tactics police use, particularly on vulnerable suspects, offend many closely held notions of humane treatment in a civilized society. Justice Frankfurter put the matter squarely, stating that “not the least significant test of the quality of a civilization is its treatment of those charged with crime.”
Speaking of threats to a suspect’s family, the Ninth Circuit made a similar point in a case where it could not give the defendant relief for procedural reasons.
Likewise, depriving a suspect of sleep, food, or water, threatening her with the loss of family, making false promises of leniency, or threatening to introduce fabricated evidence may induce confessions, but such tactics also directly contravene the humaneness of American society.
The confession literature captures some of the distributional problems with interrogation protection for wealthy or “sophisticated” recidivist suspects as opposed to their more vulnerable counterparts.
Yet it leaves out perhaps the most sophisticated group of suspects: the police. The police are the interrogators. No level of privilege or education makes up for the intimate insider knowledge that police possess through their training and first-hand experience. Few groups are better situated to refuse to talk in informal, non-Miranda interrogations. Few groups are better informed about what it means to invoke, and continue to invoke, their rights to silence and counsel. No group is more aware of the psychological interrogation techniques that police use to encourage confessions. Thus, any critique of confession jurisprudence does well to take this group into account. The police, because of their nearly unique insider status,
already skew the relationship between protection and sophistication more than almost any other group. This is problematic both for those who believe there are too many coerced confessions and for those who believe sophisticated suspects are able to pervert the truthseeking balance the Court strives for in its confession jurisprudence.
Already then, the police are in a particularly privileged position when it comes to asserting their rights to silence and counsel in the face of interrogation. Yet this most sophisticated group of suspects, as described below, enjoys numerous additional positive protections from interrogation. It is hard to imagine a more backward regime from the perspective of distributive justice in criminal law.
B. Additional Formal Protections for the Police
This section looks at the additional formal protections police receive when they are interrogated. Police suspects benefit from a combination of two formal protections not extended to most other suspects. First, Supreme Court jurisprudence protects police from the economic duress inherent in a choice between incriminating themselves and losing their jobs. Second, LEOBORs grant police dozens of additional affirmative protections. When compared with the vague and weak protections for other classes of suspects, the strong protections for police suspects raise a host of systemic problems that threaten the meaning and legitimacy of the criminal law.
LEOBORs first came about in the wake of the Supreme Court’s 1967 decision in Garrity v. New Jersey, which protects police from having to decide between incriminating themselves and losing their employment.
Garrity arose out of an investigation, prosecution, and eventual conviction of a number of New Jersey police officers for a ticket-fixing scheme.
Officer Garrity and others answered certain questions, and their answers were ultimately used to secure convictions against them. The officers later claimed that the introduction of their inculpating statements violated their Fifth Amendment right against self-incrimination. They asserted that their choice, to speak or lose their jobs, was akin to no choice at all.
Reversing the convictions, the Court agreed:
The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent . . . . We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary . . . .
The Court specifically denied that its decision was based on the defendants’ status as police officers. This right “extend[ed] to all, whether they [we]re policemen or other members of our body politic.”
The opinion’s scope, however, is quite limited in many situations because there are few other suspects who are being questioned about on-the-job wrongdoing and criminal activity by the same authority.
In other words, the opinion says nothing about what happens if a criminal suspect is given the choice between confession and missing days of work. It does not technically violate Garrity’s rule to indirectly impact a suspect’s work prospects, by for instance, detaining her until she loses her job or threatening to tell an employer about suspected criminality,
though the result may be the same “economic execution” that police officers face.
At the time the Court decided Garrity, police unions did not feel that it went far enough to protect their members from intrusive internal and potentially criminal investigations.
In fact, Garrity, the Warren Court’s other decisions, and the civil rights reform aspirations of the 1960s led both police unions and politicians to believe that police officers had fewer rights than they needed to protect themselves from misconduct investigations.
As Professors Kevin Keenan and Samuel Walker note, the police responded by “adopting many of the tactics of their civil rights critics: public protests, assertion of their group rights, and lobbying for legislative protections.”
In hindsight, and particularly at this moment, critics see these bills of rights as a way for police unions to corrupt and elude fair investigation.
The comments surrounding the first federal LEOBOR bill suggest, however, that rank-and-file officers sincerely believed they were being treated as “constitutionally inferior” to other citizens.
Their political supporters agreed. In 1972, then-future New York City Mayor Ed Koch stated to Congress that a separate bill of rights was needed because “‘an imbalance has evolved . . . while we have taken steps to insure the rights of defendants and complainants, we have failed to protect the rights of policemen.’”
Introducing another bill the next year, an Illinois congressman insisted that: “Law enforcement officers should be entitled to the same protection of the laws they are required to enforce. Policemen should be as free of intimidation and harassment during the process of a hearing as is the average citizen.”
And yet another congressman lamented that “[m]any Americans take [their constitutional] liberties and rights for granted, but for . . . [the police] who have . . . experienced life without them the saga reads very differently.”
These statements elucidate two important themes: First, LEOBOR proponents sincerely believed police officers lacked adequate constitutional guarantees. Second, these rights were negotiated with a focus on the rights police suspects should have during criminal investigations, not merely internal misconduct investigations.
A federal LEOBOR has never been passed,
but at least fourteen state legislatures have passed such bills.
Countless other versions are part of negotiated agreements with counties and municipalities.
In the only article to rigorously explore LEOBORs, Keenan and Professor Walker provide a full account of the many and differing provisions contained in the state bills.
This section will focus only on those provisions that are germane to protections from police interrogation tactics. While some LEOBORs specify that they apply only to internal investigations,
most are silent on the interplay between administrative and criminal investigations.
Most statutory LEOBORs contain very similar language. This includes the following rights for an officer being formally questioned:
- The interrogation must be conducted at a reasonable hour, preferably when the officer is on duty or during normal waking hours.
- Prior to questioning, the officer is to be notified of whoever will be present for the questioning and the nature of the charges.
- The officer can be questioned only by one (sometimes two) person(s) during an interrogation session.
- The interrogation must be for a reasonable period.
- The officer under interrogation must be allowed to attend to personal physical necessities.
- The officer must not be subject to any abusive language.
- No promise of reward can be made as an inducement to answering any question.
- The officer may not be compelled to submit to a lie detector test, nor may any comment on her refusal be entered into the notes of the investigation.
- The officer must not be threatened with punitive action (other than the threat that not answering questions may result in such action) or inducements.
Taking LEOBOR protections and the Garrity holding in the aggregate, a quite civil investigative picture emerges. The suspected officer is aware of the potential charges against her and is questioned at a time when she is most alert, with time limitations, taking into account her personal needs, and by only one investigator, who may not use abusive language, threats, or promises to encourage her to confess. Should a police suspect be compelled to make a statement by threat of dismissal, her statement is inadmissible at any criminal trial.
Depending on one’s view of the value of confessions, the meaning of the Fifth and Fourteenth Amendments, and the correct balance to strike between fairness and truth seeking, this may be an ideal or an overprotective and inefficient set of rights.
Regardless, it is a set of rights that, for all intents and purposes, applies only to police officers.
III. The Systemic Perils Created by Additional Interrogation Protections for Police
LEOBORs that grant protections for law enforcement suspects are systemically harmful in at least three ways. First, they problematically distribute criminal procedures unequally to sophisticated suspects. Second, they threaten the legitimacy of the criminal justice system by showing that the police do not allow the interrogation tactics that police use on ordinary suspects—some of which contribute to false confessions—to be used when they are suspects. Third, they violate a number of values that, according to procedural-justice scholars, lead to cooperation with the criminal law. The unequal distribution of criminal procedure protections to police is an untenable state.
On the one hand, police suspects benefit from a host of specific, statutorily imposed positive protections against interrogation. Meanwhile other potential criminal suspects have only the right to be notified of their constitutional protections and to argue that their confession was the product of interrogation so coercive that it overbore their will to remain silent.
What is wrong with this picture? At first blush, there is the problem that this state of affairs gives significantly more formal protection to one group of criminal suspects than to others. This alone violates our core notion of equality under law, which is the subject of much criminal justice writing in other contexts.
There is also something particularly problematic with the fact that the privileged group of suspects here is the police. This problem takes a number of forms. If constitutional protections already invert the relationship between sophisticated suspects and the protections they receive, granting additional affirmative rights for police skews the system even further in this direction. Additional rights for arguably the most sophisticated suspects threaten the legitimacy of the criminal justice system by preferencing, or at the very least appearing to preference, insiders over outsiders. Relatedly, suggesting that the criminal justice system is inherently biased in favor of those insiders charged with enforcing the law dilutes the normative legitimacy of the criminal law and the incentives ordinary citizens have to follow it. These are serious systemic harms that threaten our already problematic criminal justice system.
A. Fairness, Legitimacy, and the Appearance of Justice
The fact that the most sophisticated suspects get a special layer of protection from interrogation threatens the legitimacy of the criminal justice system. It allows for the inhumane treatment of some suspects while shielding the police from the same tactics. In addition, it violates the central principle of due process that “justice appear just.” By doing so, it further sullies the legitimacy of the criminal justice system.
Because investigations, and particularly those aimed at police, are shrouded in so much secrecy, those on the outside do not see whether police are actually granted these extra protections in every criminal investigation or how these additional layers of protection place police in a privileged position. What the public does tend to see, and what has been the subject of much media focus, is police using excessive force and in a number of cases, not being subjected to prosecution or punishment despite using such force.
Indeed, LEOBORs have come under fire for just this reason in places where police have been accused of killing unarmed civilians.
These reactions to LEOBORs mirror the more general public sentiment that unpunished police criminality is a threat to the legitimacy of our system.
Beyond the fact that these specialized protections for the most sophisticated suspects are unfair, the shroud under which they are meted out to criminal justice insiders offends an important due process principle in our criminal justice system.
This is the principle that justice must satisfy the appearance of justice. The Supreme Court has used this principle to disqualify judges in several cases where they appeared biased, regardless of proof that they were.
The “appearance of justice” principle does not formally apply to many of the settings this Article discusses because so little of criminal justice actually happens in these settings. But because police and prosecutors are, for many suspects, the face of criminal justice,
it is these actors who are most responsible for whether the public views the system as fairly distributed or as corrupt and unjust.
This is part of a much larger problem in our current system: Those we entrust to enforce our laws enjoy almost unchecked discretion and are too often not required to explain the seemingly unfair decisions they make.
This point is at the very core of the problem with LEOBORs and Garrity rights for police. In the judicial context, prominent scholars have noted that “if there exists any reasonable doubt about the adjudicator’s impartiality at the outset of a case, provision of the most elaborate procedural safeguards will not avail to create this appearance of justice.”
In the case of the police policing themselves, however, the opposite statement could be made. If the police alone are given “the most elaborate procedural safeguards,” no amount of “impartiality” of judges or other public officials will “create the appearance of justice.”
In order for the criminal justice system to maintain its legitimacy in the eyes of those who do not operate within its borders daily, it cannot appear to favor insiders over outsiders. And there is almost no way to appear more corrupt and unjust than having a specialized set of protections that regulate the police from interrogating other officers while they are free to use almost any tactic, short of physical abuse or extreme deprivation, against all other suspects.
Adding to the legitimacy problem created by the actual and apparent special treatment of police suspects is a problem specific to interrogations: our growing awareness of how many innocent people have been imprisoned after making false confessions. In 2008, Professor Brandon Garrett conducted a study of exonerees in which he found that “[a]t the trial court level, four types of evidence often supported these 200 erroneous convictions: eyewitness identification evidence, forensic evidence, informant testimony, and confessions.”
Confessions accounted for sixteen percent of the wrongly convicted in his study and “while half of those who falsely confessed raised claims challenging the confession, none received relief.”
More recently, Professor Garrett examined several more exonerees’ cases, finding numerous false confessors who could have been exonerated by DNA evidence at the time of their confessions.
Of the twenty-six new confession cases he studied, ten involved juveniles, at least two more involved those who had an “intellectual disability,” and at least one involved a suspect who was “mentally ill.”
All twenty-six suspects waived their Miranda rights. Professor Garrett found that all but one confession were the product of “lengthy interrogations.”
One man was questioned for twenty-seven hours, another for twelve, and all but one for more than three hours. Judges affirmed the voluntariness of the confessions in every one of these cases.
Three of these exonerees had been sentenced to death.
Professor Garrett concluded that an even greater number of false confessions likely exist but have not come to light due to the lack of scientific evidence in these cases.
As discussed above, other studies have shown that particularly vulnerable populations, including children, the mentally disadvantaged, and the mentally ill, are far more likely to confess; unsurprisingly, these groups are also more likely to be among those later exonerated.
Despite this mounting evidence about false confessions,
and about how isolation, lengthy interrogations, inducements, threats and other police tactics prevented by LEOBORs contribute to the conviction of innocent defendants,
police continue to interrogate suspects with almost no regulation.
And prosecutors continue to use confessions, ruled voluntary, to secure plea bargains or convince juries of a defendant’s guilt. In fact, when confessions are available as evidence, police and prosecutors often do little to no further investigation, as they are certain that a confessor is guilty or that they can convince a jury of a defendant’s guilt.
Now we come to find that the police themselves have negotiated for affirmative protections when they are the subjects of investigation, precisely because they are aware of how these tactics can force confessions.
As inequitable as these special protections may seem in hindsight, they were not lobbied for in a cynical manner. Indeed, they arose out of a sincere concern that nternal-affairs investigators would coerce police officers into speaking against their will.
They also represent the basic humane treatment that police officers expect to receive when they are being investigated. The fact that such rights were won sincerely does not lessen the legitimacy problem LEOBORs create. Officers who know what protections they need from each other continue to deny such protections to other criminal suspects. Meanwhile, judges and prosecutors, who should be aware of which techniques coerce confessions, continue to encourage these tactics. They do so by ruling the vast majority of confessions voluntary and using confessions as powerful bargaining and trial chips.
Thus, the formal protections that shield police from one another contribute to the appearance of an illegitimate criminal justice system.
B. Procedural Justice and Obeying the Law
The appearance problem created by specialized protections for police may do more than just cause citizen distrust in the system. It may also create an incentive for people to ignore the law.
The criminal law’s purpose is not simply to deter criminal activity but to impart expressive messages about what our democratic society perceives as moral.
In order for criminal law to encourage compliance for any reason other than the fear of punishment, those entrusted to enforce it must be seen as motivated by unbiased and just purposes.
Indeed, Professor Tyler writes, “[P]eople do not judge the fairness of legal procedures by the degree to which they gained or lost from those procedures . . . the primary direct influence upon . . . judgments of . . . legitimacy comes from judgments about the trustworthiness of authorities.”
Trust in legal authorities comes from a belief in the “benevolence of motives and intentions of the person with whom one is dealing.”
The belief that authorities have “benevolent” motives encourages deference to the criminal law.
If this is true, the converse is also likely to be true: Citizen deference to the law is discouraged when the public believes that legal authorities have malevolent or biased motives.
Our criminal justice system is rife with reasons to distrust authorities’ motives.
Specialized affirmative procedures for police suspects is a particularly pernicious example because it goes to the very heart of what studies have shown lead people to lose faith in the system. LEOBORs are procedures, designed by police for police, that fly in the face of the very techniques that police, prosecutors, and judges uphold as necessary interrogation techniques for civilians.
On the one hand, confessions are touted as among the most important forms of evidence—one of the best ways to ensure that guilty defendants are punished.
On the other hand, we see police shielding themselves from these very techniques, with little or no comment from other system actors. The fact that there are many LEOBORs that are statutory protections suggests that the legislature, entrusted with drafting the criminal law, has acceded to protecting police suspects over other citizens.
What trust then can we expect civilians to have in those who write the law, let alone those who enforce it, when a different set of rules has been explicitly laid out for the police?
Police unions continue to argue that LEOBORs are necessary for the police but not others,
but this claim has little validity. As has been discussed, police are already among the most privileged suspects, stemming from their position as criminal justice insiders. Moreover, they receive more protection from the substantive criminal law than other suspects, at least when they are accused of brutality. For instance, unlike regular citizens, police have no duty to retreat should they find themselves in harm’s way.
It makes some sense for the police to be treated differently in kind by the substantive law—they put themselves in harm’s way for the protection of society.
In order to ensure that they have incentives to continue to take such risks, society may prefer to afford them a better affirmative defense when they are suspected of an assault or homicide.
But criminal procedure should not be distributed differently to different classes of offenders, and it certainly should not be enshrined in formal law.
To the extent that one disagrees with this characterization of procedure, as far as interrogations are concerned, police may deserve less procedural protection. Police know interrogation techniques better than anyone else. They are therefore least likely to be tricked, scared, or abused into confessing.
This Article does not argue that police should be afforded less procedural protection in interrogations, but there is no cogent, principled reason why police should have more procedural protection than ordinary citizens.
IV. The Reformative Promise of Extending Some LEOBOR Protections to All Criminal Suspects
Two opposite conclusions could follow from the above analysis of formal procedural favoritism in interrogations for police suspects. The first is that such rights are overprotective of police suspects and contribute to the ongoing problem facing law enforcement accountability: that police officers should be treated more like the rest of society. Another conclusion, and the one this Article comes to, is that certain provisions of LEOBORs are common-sense protections. They serve the important goals of making potentially false confessions less likely and upholding a basic standard of behavior for public officials toward those suspected, but not yet charged or convicted, of crimes.
This Part addresses how best to solve the problem of special interrogatory protections for police. First, it considers the suggestion that scholars, commentators, and politicians have made—that we abolish LEOBORs to ensure police accountability and equal procedures for criminal suspects. Certain ancillary features of LEOBORs, in particular the long waiting periods before questioning, should be abolished.
But the core of LEOBORs—the affirmative protections from certain coercive interrogation tactics—should instead be extended to all suspects. Returning to the notion of police as criminal justice insiders, the protections the police negotiate for in the interrogation context are theoretically and practically among the best tools available for mapping out a more accurate and more humane way to conduct interrogations. LEOBORs are the protections selected by those with the most knowledge about interrogations when they imagine themselves to be in the position of criminal suspects. As such, these documents are an almost uniquely suited model for beginning to reimagine what the law should look like.
The next section discusses which LEOBOR provisions should be extended to all suspects. It concedes that, because LEOBORs may represent overprotection rather than optimal interrogation procedures, a protection’s existence in a LEOBOR is not, on its own, a sufficient condition for extension. It then suggests two categories of LEOBOR provisions that have independent value, either because they may impact the likelihood of a false confession or because they represent a floor of humane treatment under which state officials should not be allowed to fall.
The last section suggests two ways in which LEOBORs may be used to change the law on interrogations. First, state legislatures could pass statutes similar to LEOBORs that give all criminal suspects some of the same affirmative interrogation rights currently reserved for police. It sketches out roughly what such a statute could look like. Second, both trial and appellate judges should be aware of and consider LEOBORs as a model to determine whether a confession was voluntary when conducting a totality of the circumstances analysis. The Article next proceeds by discussing some positive systemic possibilities that flow from extending LEOBOR interrogation protection to all suspects and addresses some possible counterarguments.
A. Using LEOBORs as a Starting Point for Reimagining Confession Rights
Most scholars who have commented on LEOBORs have criticized them. Such a response, while intuitively appealing, misses an important opportunity for real and sustained interrogation reform.
Very few scholars or commentators have addressed LEOBORs. In the wake of certain well-publicized police killings, however, particularly the spine-breaking death of Freddie Gray on a “rough ride” in a Baltimore police van, politicians and scholars have begun to take note. With the exception of police union representatives,
the response almost uniformly has been to call for the abolition of LEOBORs.
But for the most part, attention has been on a provision of these statutes that is not about interrogation. Many LEOBORs contain a waiting period before an officer may be questioned.
The purpose of this waiting period is ostensibly to provide time for an officer to find an attorney.
Given that police have well-connected union representatives who can easily and quickly secure them representation,
however, these waiting periods offer the opportunity for officers to collude and present an innocent version of events in a case in which their actions may not have been justified.
In Baltimore, this “cooling-off period” is ten days, an all but unjustifiable length of time.
The Baltimore mayor, citing this delay, criticized LEOBORs for making the investigation into the officers involved in Gray’s death more difficult.
Other politicians and advocacy organizations have called for the repeal or abrogation of LEOBORs. The mayor of Providence, Rhode Island, has called for the elimination of his state’s statute.
A California chapter of the AFL-CIO has publicly asked the national federation of unions to cut ties with police unions, citing unfairness of LEOBOR protections as a major reason for the split.
Scholars who have responded to the role of LEOBORs in police brutality cases are similarly critical of the statutes. Professor Paul Butler asserts that the officers in the Gray case had ten days “before they ha[d] to say a mumbling word.”
He went further, stating that “the police will take advantage of all the extra due process they get . . . to concoct an alternative version of events.”
He also argued that LEOBORs are laws that “thwart transparency and accountability.”
His recommendation, unsurprisingly, was to abolish them.
Professors Walker and Jeffrey Fagan and well-known innocence lawyer Peter Neufeld have also commented that LEOBORs are unfair extra protections that impede “police accountability.”
It is not hard to understand this reaction to LEOBORs. Abolishing LEOBORs has several intuitively appealing features. Doing so would restore the procedural balance between police and the rest of us—it would, in a number of ways, reduce the fairness, legitimacy, and procedural justice problems discussed earlier in this Article by putting police back on the same formal footing as all interrogees.
And it might make the police more accountable and even more likely to inculpate themselves, at least on the margins. But as discussed above, the police will still have the informal advantages they receive simply from their roles as insiders in the criminal justice system.
They will still be the most sophisticated suspects—the least likely to waive Miranda, to speak to investigators without an attorney, or to sit in jail pretrial. And they will still receive informal advantages from their prosecutorial counterparts.
Those advocating the wholesale abolition of LEOBORs also miss a rare opportunity to look at how those who conduct interrogations understand these proceedings. Scholars have argued for years that neither Miranda nor the voluntary-confession cases adequately protect suspects’ rights.
Yet one weakness in these scholars’ writing is that it is mere supposition—they are guessing about what interrogation tactics are too unjust or too unfair and are relying on studies about what leads an innocent suspect to confess or what makes an incriminating statement involuntary.
Indeed, most people have never been inside an interrogation room or performed an interrogation.
But this is why LEOBORs are such powerful tools. LEOBORs document the protections desired by those who know how interrogations are conducted. Thus, they are an insiders’ guide to protecting suspects from the most coercive police tactics. The only problem is they currently protect only the least vulnerable suspects.
LEOBORs are a script for reform, drafted by the system actors who do the interrogating.
But LEOBORs represent more than just the preferences of interrogators. They also represent the preferences of those who imagined themselves as the subject of interrogation.
This goes some way toward ameliorating another problem that infects the process of making criminal law and procedure. The legislators tasked with making law and the courts tasked with interpreting constitutional or statutory rights are populated largely by those who are not personally affected by the criminal justice system.
And while the media and lobbyists for law enforcement and victims’ groups constantly remind us to put ourselves in the shoes of the police,
or in the shoes of potential victims,
there is no such policy- or lawmaking presence on behalf of potential suspects.
LEOBORs represent rights lobbied for, or negotiated by, police who ex ante imagine themselves in exactly the position that is so often under- or unrepresented in other political contexts. Thus, these statutes and agreements are valuable tools in two key respects. They are the rights that the interrogators want for themselves, opening a window for the rest of us into what tactics those who operate within the world of criminal justice consider potentially abusive. They are also the rights of those who have imagined themselves as criminal suspects before knowing whether or not they will become such suspects. It is rare to find such a combination of knowledge from experts.
We should make use of this knowledge rather than hastily disregard it.
Of course, just because police know what tactics are likely to lead to confession and what tactics they do not want used against themselves does not mean that LEOBORs represent an optimal or even a good set of rights for criminal suspects. A skeptic might well say that these rights were hammered out the way any good negotiation is, and thus, they represent the best protections that a politically influential group could get for its members rather than the protections that should apply to all criminal suspects.
Yet some LEOBOR provisions also dovetail with protections that have independent value, whether because they represent what social science and studies of exonerated innocents tell us about police tactics that may lead to false confessions, because they represent a floor of respect that we should seek for criminal suspects, or both.
In each case, “appearance of justice” principles and procedural justice concerns bolster the extension of certain LEOBOR provisions to all criminal suspects.
B. Which Protections to Extend to All Suspects
Not all LEOBOR protections should be extended to all suspects. Nor is a protection’s appearance in a LEOBOR a justification, in and of itself, for such extension, no matter how sensible such a position might appear.
To be sufficient, LEOBOR provisions should also have an independent value. Here, this Article makes an initial attempt at suggesting which provisions in LEOBORs should be extended.
There are two, often interrelated, values that make a provision worthy of extension to all suspects. The first is what I call “accuracy” protecting provisions, and the second is what I call a “floor” for maintaining the legitimacy of the criminal-interrogation process in the sense that it provides a standard of treatment below which we should not allow state officials to fall in their pursuit of criminal confessions. The values that animate Part III of this Article—that we should seek a justice system that appears just, that maintains legitimacy in the eyes of the public, and that encourages citizens to obey the law—also favor adopting LEOBOR provisions that call for humane treatment of suspects.
1. Accuracy Protections. — Studies of false confessions give us a good, though incomplete, sense of which police tactics LEOBORs disallow among those that may coerce an innocent person to make an inculpatory statement.
For purposes of this Article, the relevant tactics are (a) lengthy interrogation
and (b) false promises of leniency or threats of harsh treatment. Promises of leniency can range from a statement that a suspect can “go home” or “see her child” if she makes an inculpatory statement
to the more obvious “let’s make a deal” false promise where an officer falsely tells a suspect that, if she confesses, her charges or incarceration term will be reduced.
False threats of harshness toward the suspect include lies about the nature of the charges against her and the resulting harm that will befall her should she refuse to inculpate herself.
a. Length of Interrogation. — In Ashcraft v. Tennessee, the Supreme Court held that interrogating a suspect for thirty-six hours was unconstitutional because it was “inherently coercive.”
Since then, social science and studies of exonerated false confessors have made clear that a person can be coerced to confess in far less time. Scholars have found that interrogations that last more than a few hours are far more likely to produce false confessions.
Professors Drizin and Richard Leo found that of all the exonerated false confessors where “length of interrogation . . . could be determined[,] . . . [m]ore than 80% of false confessors were interrogated for more than six hours and 50% . . . for more than twelve hours.” As they conclude, “[t]hese numbers are staggering.”
The impact that interrogation length has on overbearing the will of an innocent suspect is particularly stark when one considers the average police interrogation length: less than two hours.
Based on these numbers, among other things, Professor Eve Brensike Primus has suggested a constitutional maximum of five hours—in other words, any interrogation lasting longer violates the voluntariness test and is inadmissible per se.
States considering statutory protections for suspects or judges dealing with the voluntariness test as it currently stands should consider setting a maximum length of even less time. One way to help determine an appropriate maximum length of an interrogation is to determine for how long police suspects are interrogated.
Setting a time limit on interrogations is likely to reduce false confessions without greatly undermining officers’ ability to get true confessions. As such, it is a provision of LEOBORs that should be extended to all suspects.
b. Inducement Through Promises of Leniency or Threats of Harshness. — A number of LEOBOR provisions prevent interrogators from inducing law enforcement suspects to confess through promises of leniency or through threats.
There is good reason to consider extending such rules to interrogations of all suspects. The false-confession literature is rife with examples of suspects, usually young or mentally incapacitated, who report that they confessed so that they could go home to their mothers or other family members.
For example, the Central Park Five, teenagers who falsely confessed and spent years in prison for an infamous sexual assault in New York City, were told they could go home if they admitted to the crime.
In another case, a teenager was told he could go home if he confessed to a murder he did not commit. After confessing, the police told him they were sending him home; instead, they sent him to jail.
Similarly, threats of harsh treatment are among the tactics police use that reportedly contribute to false inculpatory statements.
Such threats are often in the form of a legal response to refusal to inculpate, such as heightened charges,
a very long prison term,
or even the death penalty,
or in the form of suggesting potential consequences of not confessing, such as prison and rape or physical abuse by other inmates.
To the extent that such a proposal may strike some as too broad, this Article suggests a middle ground. One way to cabin the use of inducements and threats but not remove them from an officer’s arsenal entirely would be to have a rule prohibiting false inducements and false threats. In other words, a police officer would not be allowed to tell a suspect, falsely, that he could go home to his mother upon confessing to a crime. But a police officer could tell a suspect that a confession would take the death penalty off the table, as long as a prosecutor had blessed such an inducement. Similarly, an officer could not threaten a suspect with the death penalty if she were accused of a crime that could not theoretically carry such a punishment, but the officer could use such a threat if capital charges could be levied.
The benefit of true inducements or explanations of punishment is that a suspect gets real information with which to make a decision while the police can still use such tactics to the extent they are useful. On the other hand, interrogation is already such a coercive situation that such information might be too hard to process to guarantee that a suspect was actually making a rational decision to confess.
Another problem with this suggestion is that a rule prohibiting false inducements and false threats would be far harder for a reviewing judge to sort out than a bright-line rule rejecting the use of inducements or threats per se.
It is hard to know whether shortening confession lengths and reducing the types of inducements and threats law enforcement can use will impact the disturbing number of false confessions that have arisen in the past few decades.
But these three tactics are ones that the police believe should not be used against their colleagues when they become suspects and have been identified as contributing to false confessions in numerous cases. Restricting law enforcement’s use of long interrogations, inducements, and threats could be a very good starting point to reforming confession law.
2. Floor Protections. — LEOBORs provide that a suspected officer must be allowed to attend to her “basic necessities,” which this Article defines as regular meals, sleep, and access to the bathroom.
Such allowances are largely unaddressed in the false-confession literature.
This is perhaps because most police detectives already provide such allowances to suspects.
Discussion of these deprivations may also be excluded from the false-confession literature because, unless denied in the extreme, they are not likely to contribute to an innocent person inculpating herself. But they are important enough that the police sought to have them enshrined in formal law or negotiated contract. Such inclusion in LEOBORs warrants at least an inference that police feared denial of basic humane treatment when imagining themselves as suspects.
The values that animate an insistence on ensuring that suspects receive basic humane treatment are the same values that led to the abolition of physical abuse and deprivation as a tactic for eliciting confessions.
From those cases, it is clear that a floor does exist in terms of what police may do to get a suspect to confess.
As the Court stated in Brown v. Mississippi, physically abusing a suspect is “revolting to the sense of justice,” regardless of whether it produces confessions.
At some point, physical deprivation also reaches that floor of revulsion, according to the Court.
It would be easy to argue that the indignities included in the “physical necessity” provisions of LEOBORs are of completely different scale. But if these indignities are so minor, then their corresponding utility is also likely to be minimal.
In other words, why bother letting police use hunger, minor sleep deprivation, or the use of the bathroom as a tool for confession when it tells an ugly story about the way law enforcement treats people without much possible benefit to society? And if most police do not treat suspects with this kind of disdain, disallowing it will have little impact on most officers except for a potentially positive impact on the way suspects view law enforcement.
In short, ensuring humane treatment of suspects through rules is a worthy goal. The human and legitimacy costs to our system of having inhumane treatment serve as a possible tool of interrogators outweigh whatever marginal benefit inures to investigators by treating suspects inhumanely in these ways. The next section will address some ways these reforms could be implemented.
C. How to Extend These Protections and Some Potential Results
This section looks at two ways to extend LEOBOR protections. First, they could be extended through legislative action; second, they could be used as a tool for judges who must apply the totality of the circumstances test.
This section then considers the positive systemic implications of extending affirmative interrogation rights to all suspects and then considers some possible negative ones.
1. Legislative Action. — Statutory change in favor of criminal suspects and defendants has been very difficult, if not impossible, to implement in the recent past. It has been considered political suicide for a legislator to support this least-favored minority, particularly given the political strength of law enforcement and victims’-rights lobbies.
But the culture has changed dramatically in the past few years in two ways: First, awareness of our broken and overburdened criminal justice system has made reforming it a political issue on a national and state level. The Supreme Court has ordered California to reduce its overcrowded prison population.
Proposals to lower sentences, remove harsh three-strike laws, and decriminalize low-level possession of narcotics abound.
Second, the increased attention to police brutality has made this once politically untouchable group more open to questions from citizens and politicians. In New York, the governor has removed all police-killing prosecutions from the hands of local district attorneys, citing their inherent conflict of interest when tasked with prosecuting their law enforcement allies.
California has passed a statute to remove the option of “secret” grand jury hearings for police suspects.
Thus, the political stage is set for even greater reform. With LEOBORs gaining national attention, interrogation reform seems more possible than ever before.
A state legislature that wished to protect accused citizens from certain interrogation tactics could use LEOBORs both as a model and as a justification for reform. Such a statute could apply at any stage of an investigation. It would not have to be contingent on a formal arrest,
but assuming states would not make such a dramatic change to pre-arrest law enforcement tactics,
a politically feasible statute would likely apply after formal arrest. Such a statute could look something like this:
A suspect who has been formally arrested and has waived her Miranda rights is entitled to the following protections during any interrogation that follows:
- A suspect has a right to know about any and all charges being considered against her that are known to the police.
- Each interrogation session may not last more than three hours, and a suspect must be given a reasonable amount of time to rest between sessions.
- Food, water, and other basic necessities must be provided at normal mealtimes.
- Bathroom breaks must be offered at reasonable intervals or provided upon request.
- No untrue threats or promises may be made in order to induce a statement, including but not limited to:
- Threats of physical harm.
- Threats the suspect will lose her employment by missing work.
- Threats that her partner/spouse or children will be harmed by her refusal to speak.
- Promises of leniency in return for a statement.
- Promises that a suspect will be able to leave the precinct if she makes a statement.
- Nothing in this statute should prevent a law enforcement officer from refraining from any tactic that she would not want used against her should she be the suspect of a police investigation.
For the most part, this proposed statute is taken directly from LEOBORs. The last section would be included in order to remind an officer that she should treat the subject of a criminal investigation in the manner that she would want to be treated. Any state legislature that has a LEOBOR should be encouraged to pass a statute like the one proposed above. At the very least, it should be asked to explain why such a statute exists for police but should not be extended to all suspects. This should be a hard question for a legislature to answer coherently.
2. Make Reviewing Judges Aware of LEOBORs. — If legislators would not or could not pass a statute like the one suggested above, LEOBORs could still provide judges with powerful tools for assessing whether a confession is voluntary under a totality of the circumstances test. This is true even assuming the constitutional framework does not change.
As discussed in Part II, the current state of suppression hearings leaves the decision of whether a suspect’s confession was voluntary entirely to the discretion of, and on the shoulders of, reviewing judges. These judges face many systemic and professional obstacles when asked to suppress a confession. First, because a confession is such powerful evidence, in many cases it may represent the only evidence the state has to convict a defendant. Thus, a judge who would suppress a confession is essentially tanking the prosecutor’s case and freeing a potentially dangerous suspect, a point no prosecutor will let her forget. Judges have numerous reasons to avoid doing this. First, they may have a natural bias in favor of the professional repeat players who come into their courtrooms.
They have the confession itself, which once made, is subject to confirmation bias.
Even if a judge is able to rise above these powerful pressures, she then must insert herself into the mind of the suspect—how vulnerable is she? How calculating?
How do youth, intelligence, or mental stability affect her ability to consent? And she must question police tactics based primarily on officers’ testimony about what happened. Naturally, the police will remember their actions in the most positive light. Judges may tend to credit professional law enforcement’s account of an event over that of a criminal defendant who has confessed to a crime and is facing imprisonment.
A checklist of interrogation techniques that are prohibited against police suspects, even if not made mandatory in confession law, would immediately do a number of things for a reviewing judge. First, it would give the judge a structure through which she could consider the testimony she hears at a suppression proceeding. Second, the knowledge that this checklist is modeled on LEOBORs could do several things to upend the natural biases she faces: It would remind her that law enforcement officers are not always interrogators—sometimes they too are suspects. It would show her what these knowledgeable criminal justice insiders would consider unfair tactics should they be facing questioning. And it would give her demonstrable reasons to question the credibility of officers who claimed that their tactics did not impact the suspect.
Similarly, at the appellate level, where the likelihood that a conviction will be overturned due to an involuntary concession is even more remote, LEOBORs could be useful tools. Appellate judges should be made aware of these special provisions for police. Despite the temporal disadvantage a suspect faces on appeal from a conviction, appellate judges are insulated from many of the institutional problems that trial judges face. Their credibility judgments are based on a transcript, not live witnesses. They do not have the same daily interaction with prosecutors and police. Thus, they might well be more able to see the objective unfairness of tactics used by police—tactics that LEOBORs prevent from being used against the police.
3. Possible Results. — The systemic benefits to extending affirmative protections to all suspects are numerous and exciting. In short, such an extension presents the possibility of correcting the current state of inversion that exists between the most sophisticated suspects and the protection from coercive tactics that they receive.
Righting this inversion presents the possible benefits of ensuring we treat all suspects with some level of dignity, shoring up the legitimacy of the criminal justice system,
suggesting that system actors care about fairness for all suspects, and increasing trust in the law.
It is impossible to calculate how many innocent suspects might not confess if they had extra affirmative rights,
but it is clear that false confessions are a serious problem.
If research on what compels a vulnerable suspect to confess is correct, changes in police practices could at least reduce the number of innocents who falsely confess.
For example, a number of the exonorees in Professor Garrett’s studies confessed after twelve-hour interrogation sessions. If a time limit were statutorily imposed, such a long interrogation would not have transpired. These practical standards that LEOBORs provide could save innocent suspects the torture of a false conviction and imprisonment. States, in avoiding false convictions, would also save millions of dollars in incarceration costs and the cost of lawsuits that flow from the exoneration of the innocent.
Similarly, more humane interrogation practices would reduce the likelihood that a confession results from a suspect’s vulnerability rather than a true desire to confess or a sophisticated knowledge of the benefits of early confession.
This could have an impact beyond individual suspects. As many of the most vulnerable suspects are less educated, less wealthy, and less intelligent, their high rate of incarceration is an offense to our notions of justice. Figuring out ways to ensure that justice is meted out as fairly as possible is one of the main aspirations of criminal procedural rights.
Humane interrogation procedures are one way to make a dent in this daunting project.
Fewer confessions might also encourage better practices by police and prosecutors generally. As mentioned above, when a confession is made, often no further investigation follows.
If fewer confessions were coerced, police would have to use the many other investigative tools in their possession to ensure that the correct suspect had been identified.
They would have to interview more witnesses, test DNA samples, and use other scientific and technological advances to investigate.
Prosecutors, who could not rest on the assumption that a questionable confession would be ruled voluntary, would also be forced to investigate further or think harder before bringing charges against a suspect.
While this may seem like a costly remedy in the short term, avoiding false confessions and giving more thorough precharge process might well save money over time.
Particularly if changes led to fewer false confessions, prosecutors could also more credibly assert that confessions were voluntary.
Ironically, despite likely protestation, limits on interrogation tactics could actually help the police.
As it now stands, it is very hard for even the most scrupulous officer to know how much is too much, how far is too far, and how vulnerable a given suspect is.
In Professor Garrett’s most recent study, a number of suspects were reported to have revealed information about their alleged crimes that only a suspect or the police could know.
Once these people were exonerated, it became apparent that such “confessions” were clearly contaminated by their interrogators. Professor Garrett suggests that, rather than a function of intentional contamination, such details were given to suspects by police “completely unintentionally” during a “complex” interrogation in which “police offer suspects a set of complicated and increasingly inculpatory accounts of the crime in an effort to secure a confession.”
Bright-line rules designed to decrease the complexity of interrogations and to disallow certain techniques would give the police far clearer signals about how to question a suspect. In short, it would not ask police to be psychologists on top of investigators.
Insisting on certain affirmative protections for suspects would also help trial and appellate judges. Rather than having to divine in each case what mixture of tactics may have overborne a suspect’s will, judges would have clearer rules from which to work.
If, for instance, it were determined that three hours was the upward limit of an interrogation before it became coercive, judges would be able to rely on a clear rule to make a determination.
This would save time and administrative costs and ensure that judges did not have to insert themselves into the minds of individual suspects to determine how vulnerable they were.
It would also save judges from having to make individualized guesses about a certain law enforcement officer’s behavior.
It might also correct for possible law enforcement bias on the part of judges by taking away some of their discretion in suppression decisionmaking.
Extending LEOBOR protections to all suspects would have, perhaps, an even greater impact on ordinary citizens. At this moment, when citizen distrust of both politicians and law enforcement is at a problematic level,
a public acknowledgment that LEOBORs should protect everyone, not only the police, would have an immediate salutary effect. It would be the embodiment of justice appearing just.
While repealing LEOBORs might achieve a similar goal, it would not be as effective. Extending LEOBORs to all suspects would show that law enforcement had indeed negotiated sincerely for their protections. It would also show that those in power, recognizing the unfairness of selectively applying such protections, had decided to accord ordinary citizens the same rights.
Particularly if publicized in conjunction with data about false confessions, the public would likely respond favorably to common sense and easily understandable protections—protections that some might well assume already exist.
Extending LEOBOR protections to all suspects would take a dangerously delegitimizing favoritism and turn it into a legitimizing and politically appealing criminal justice reform.
Moreover, the costs of doing this, either through legislative or judicial action, would be slight—the protections have already been negotiated and outlined for legislators and judges.
A concrete and beneficial action of this kind by lawmakers could do more than just restore the legitimacy of the system in some portion of society’s eyes.
If procedural-justice empiricists are correct, it might also impact the normative value of criminal law and even compliance with the laws we care to enforce.
A public that sees law enforcement actors respecting them, acting to correct corruptive influences, and doing their best to distribute criminal procedure evenly should lead to a higher level of trust from citizens. This higher level of trust should lead, at least in some portions of society, to greater respect for the law.
Any amount of fairness, accuracy, and legitimacy that can be injected into our current system is a project worth seriously considering. The fact that, in this case, the project emanates from the most knowledgeable insiders and is relatively inexpensive to impose makes extending LEOBORs to all a practical and powerful reform. But like any reform proposal, this suggestion will raise objections.
One counterargument arises immediately: Police, as insiders, are not designing a fair system, they are designing a corrupt one. They know what interrogation techniques compel suspects to confess and they want to protect themselves from such techniques, not to protect innocent police suspects but to protect guilty ones. In other words, a cynic might say that LEOBORs are corrupt protection for corrupt insiders,
in which case their extension to all suspects will overcorrect, meaning fewer guilty suspects will confess, making it harder for law enforcement to solve crimes efficiently.
This Article has already specifically addressed this issue by suggesting extension of only those LEOBOR provisions that also have an independent rationale. More broadly, overcorrection is a reasonable concern and one reason to advocate for repeal of LEOBORs. However, serious consideration reveals several responses to this position. First, as the history of LEOBORs shows, the police did not lobby for these statutes in a cynical manner.
Their statements reflect a real belief that affirmative interrogation protections were necessary in order to protect officers’ rights not to incriminate themselves. Second, while it is impossible to say that extending some or all of these affirmative rights to all suspects will not overcorrect on the margins, it is unlikely to do so for the majority of suspects. This is for a number of reasons. Suspects who genuinely want to talk to the police will not be deterred because they are allowed to tend to basic needs or to sleep or to understand what charges they are facing.
Police training manuals themselves make clear that, for most suspects, an hour or two of questioning is enough to produce a voluntary statement.
Sophisticated suspects, who are not inclined to talk to the police, will invoke their Miranda rights and refuse to talk to the police at all.
This leaves an admittedly unknowable number of suspects who have no rational desire to speak to the police. Some number of these suspects confess, either because they do not understand their rights or because they are compelled through bullying or other interrogation techniques.
This is the current state of interrogation law. Law enforcement and a few scholars believe this is optimal—for all suspects other than the police. Most scholars who write on the subject do not. Potential overcorrection for some guilty suspects who will not speak to the police if we extend LEOBOR rights to them is possible.
But it is also certain that some of these suspects are innocent and others are particularly vulnerable.
Whether through putting ourselves in their place, taking lessons from exonerations, or simply caring that constitutional criminal procedure applies equally, these are the suspects society should seek to protect the most.
Another reasonable objection would be the opposite one: Extending affirmative interrogation rights does not go far enough. For instance, many criminal justice reformers believe that no suspect should be allowed to speak to the police without an attorney, period.
In practice, however, this means changing Sixth Amendment law to include interrogation as a critical stage at which a suspect must be given an attorney.
It also means spending potentially millions of additional dollars for more public defenders.
In short, it means reimagining the entire structure of interrogations.
This Article’s proposal is far more limited and may well not protect suspects’ rights as much as many would like. But it has the benefit of feasibility and a more subtle benefit that the police would have to confront their own desired treatment before interrogating others. The very explicitness of this comparison might have more impact on the way police conduct interrogations than we realize. There are surely some detectives who coerce confessions, knowing full well that they would not be subject to the tactics they use. My intuition, however, is that most do not think about it in these terms. If they were made aware that the protections they now needed to respect were designed by them, it would necessarily be harder to toss them aside. Affirmative interrogation protections would be as easy to implement as Miranda rights.
Unlike Miranda, however, which law enforcement may still see as imposed by judges from on high,
to ignore the interrogation protections suggested here would mean that the police were disrespecting rights they themselves had erected.
As a society, we are reckoning with police violence specifically and the failures of our criminal justice system more generally as never before. Police as criminal suspects and defendants raise a host of systemic legitimacy issues that have heretofore never been examined. Both through formal rules and informal favoritism, police suspects are granted advantages that no other suspects receive. These procedural advantages add to the growing list of ways in which criminal justice in this country is an unfair and untenable system of law. Police are part of a small cadre of criminal justice professionals who understand and influence how the criminal justice system operates. As such, favoritism toward them presents important and unexplored mechanisms through which to suggest and study reform possibilities for entrenched and problematic areas of the criminal justice process. This Article has addressed how one such area—confession law—can be reformed. Extending the protections police suspects receive from interrogation tactics to all criminal defendants will not solve our criminal justice problems, but it may increase the humanity with which suspects are treated and the accuracy of their confessions. Moreover, recognizing what we can learn from how police protect themselves and are protected by other criminal justice professionals opens up numerous other ways in which we might make critical changes to our overburdened, inaccurate, racially charged, and economically unfeasible system.