The Lawless Arm of the Law
I
IT was Commissioner Austin J. Roche of the Buffalo Police Department who phrased for me the contemporary doctrine of unlawful law enforcement in its most appealing form.
‘My oath of office, as a chief of police,’ said he, ‘requires me to protect this community against crime. If I have to violate my oath of office or violate the Constitution, I ’ll violate the Constitution. Nobody thinks of hedging firemen about with a lot of restrictive laws that favor the fire. Crime is fully as dangerous to the public as fire, and the policeman and fireman ought to be equally free. If, in the process of enforcing the laws, I or my men infringe anyone’s Constitutional rights, the law provides a remedy — let him sue.’
The sincerity of these utterances was as obvious to me as the Commissioner’s gift of epigram. The attitude toward the basic law of the land so pithily conveyed may seem slightly surprising in a professional field agent of law and government; and the fallacy of comparing fire, which is chemical, with crime, which is human, may strike you at first glance as too clear to be taken seriously. But Commissioner Roche was speaking for a school of thought that is widely prevalent (though not quite universal) in American police circles to-day. Our devoted law enforcers in most municipalities are in a curiously open state of rebellion against those portions of the Constitution which outline the methods and set forth the principles of the American plan of criminal justice. Opinions of this same general tenor followed me across the country and back again last autumn and winter, when I was investigating unlawful law-enforcement practices for a division of the Wickersham Commission; and the opinions were so similarly phrased that a Hamilton Fish might easily have suspected the working of a malignant and secret propaganda — perhaps the Third Internationale itself — among our constables. Daily acts of lawbreaking, in the course of law-enforcement work, in virtually every city visited were giving this doctrine life. The ‘arm of the law’ is offending against a part — and that the better part — of the body of law it is assumed to protect.
Not mere technicalities, but the large essentials that are social no less than legal, are the favored objects of police violation. The Fourth Amendment of the Constitution, safeguarding us from unreasonable seizure of the person, is being violated by innumerable false arrests. The Fifth Amendment, protecting all persons against loss of liberty without due process of law, is commonly invaded by the holding of arrested persons varying lengths of time in police jails before even charging them with crime. Through continual clubbings and beatings of arrested persons, and clubbings and beatings having no connection with arrest, police are violating ‘domestic tranquillity’ and invading the first purpose of all government — the personal safety of individuals.
Kidnapping, and assault and battery, are forbidden to the police by statute, no less than to the ordinary citizen. But just as policemen may speak with impunity against the Constitution, so they may safely violate the statute law. False arrests, and illegally long imprisonments after arrest, are, however, only preliminary steps in the main unlawful process — the ‘sweating’ of suspects to secure confessions.
II
In every city our police hold what can only be called outlaw tribunals, — informal and secret inquisitions of arrested persons, — which are, terminology aside, actual and very vigorous trials for crime. The origin of the idea that it is a police function to try cases I do not know; but literally everywhere to-day these inquisitorial courts of pretrial are in full operation behind locked doors in police stations and police headquarters. Devoid of form and rules, these outlaw sessions are alike as to the invariable main purpose of the police, detectives, or officials who hold them; and that one purpose is to make the arrested person confess to guilt of crime. Says the Fifth Amendment; ‘Nor shall any person ... be compelled in any criminal case to be a witness against himself.’ The legal courts, of course, obey this mandate. As a nation we are getting around it, for in practice the Constitutional guarantee is thoroughly dead — through this self-arrogated police privilege of star-chamber grilling, beginning usually with the formula: ‘All right — we know you’re guilty; come through and it’ll be easier for you.’
It is normal, of course, that detectives should ask suspected persons about their whereabouts, activities, acquaintances, and the like, though even then the Constitutional right of silence cannot be denied. Historically, the pressure to obtain confessions has been such an abomination that the framers of the Constitution, and the English common law long before their time, expressly outlawed it. The British police are forbidden to ask the direct question: ‘Are you guilty?’ As a result, they have devised legitimate detective methods. But our whole American police profession has plunged, with extraordinary enthusiasm of late, into this business of compelling confessions. The lion’s share of detective brains has gone into this task, to the neglect and detriment of legal investigative work. So we have many star confession getters, few star detectives. Our courts are deluged with confessions; in general, about three fourths of all felony cases that come into court have confessions submitted as evidence, or result in pleas of guilty based upon confessions. No one has the least doubt that 99 per cent of these confessions are ‘compelled.’ The secret grilling process itself reeks of compulsion, even though violence be avoided. (It is not always avoided; the third degree exists.) Centring all upon the confession, proud of it, staking everything upon it, the major canon of American police work is based upon the nullification of the most truly libertarian clause of the Fifth Amendment.
I dwell upon this because the outlaw pre-trial inquisition by police is by all odds our predominating trial court in point of fact. The police ‘try’ about five cases, and dispose of them through liberation (acquittal) or by getting confessions (conviction), to every one that is tried legally in an authorized court. This is the statistical indication for New York, Chicago, St. Louis, Milwaukee, and Cincinnati — a fair cross section. And the police obtain confessions in about five cases to every one that is convicted in a court of law. The legal courts come into operation only after the police are through; they are reduced to the position of merely ratifying the plea of guilt which the police have obtained, or else holding trials over the minor percentage of arrested persons about whom the police could reach no conclusion. Let us not be deceived by appearances: the testing of guilt or innocence is being conducted in this country to-day outside the field of law and by police methods which are contrary to law. The inquisition held by the police before trial is the outstanding feature of American criminal justice, though no statute recognizes its existence.
III
Now the reason why the Constitution, and the common law before it, forbade secret trials was that history plainly showed the tendency of starchamber sessions to engender the trial by ordeal. Our detectives and police officials not only have revived the ancient trial by ordeal, but have added torture to it. One hundred and three instances of torture, ranging from fatigue and hunger to blows, beatings, and abnormal acts of sadism, may be found in the records of State Supreme Courts and the United States Supreme Court since 1920. The Wickersham Commission gathered many more that had not reached the highest courts.
Of the fifteen cities studied by the Commission, only Boston (by long tradition), Philadelphia (since 1928), and Cincinnati (of late) showed a total absence of brutal violence from these pre-trial sessions. Violence was habitual in New York, Chicago, and San Francisco; fairly frequent or occasional, though under control, in Cleveland, Detroit, Newark, Buffalo, Los Angeles; perhaps infrequent, though extreme when it did occur, in such smaller cities as Albany, Denver, and the like. Seattle’s pre-trials were unique: they were held, not by detectives, but by the ‘harness bulls’ at the moment of arrest, confessions being sought and often obtained before the suspects even reached the station house. In San Francisco, and elsewhere, the street beating had the character of being a prefatorial warning of what would come if a confession was withheld. Conditions, as far as the use or the forms of violence are concerned, may vary in any given city at any moment, — there have been apparent variations, due to administrative changes, in both Detroit and Chicago since the investigation, — but the thing that shows no signs of changing is the secret grilling, the inquisition by police; and its star-chamber and extralegal character breeds violence and abuse at the whim of those who are the inquisitors. Having no legal status, having grown up because of the convenient absence of legal rules and guarantees, how can its results be otherwise?
One result may be briefly noted. The confessions obtained by the police, through threats, violence, long imprisonment, fatigue, fear, hunger, or merely by creating a menacing situation from which the suspect urgently desires to escape, would not be worth the paper they are written on, as evidence, if all were known to the court of law. ‘A confession is voluntary in law if, and only if, it was in fact voluntarily made,’ said the United States Supreme Court in the Wan case. Hence the final link in the chain of lawlessness is perjury; it is indulged in by the police as a routine matter, to get confession evidence accepted. Lawlessness must be covered up by lawlessness. This whole extralegal procedure violates, then, all the rules made to safeguard the integrity of evidence, all the Constitutional guarantees of fair trial, and the spirit of the Eighth Amendment forbidding cruel and unusual punishments,
IV
It is possible to describe the technique of American police in fairly harmless terms — as resting upon prompt arrest, the development of evidence after arrest rather than before, with the suspected person held in custody meanwhile, and the principal search for evidence centring upon the suspect’s head. It is only by placing this system side by side with the law of the land that one can appreciate how genuinely usurpative and subversive it is. The Constitution forbids certain practices; they are brought back, under cover, by the police. That is what it amounts to, though the founders of this nation would have put it more strongly; they would have said: ‘These outlawed practices are what we have defined as tyranny.’
One more root of police lawlessness, besides the usurped trial function, is the usurped punishment function. No law gives to constables any general disciplinary powers or any right of corporal punishment. ‘What do they give us these night sticks for if they don’t want us to use them?’ queried a New York policeman in conversation with a worker for the Wickersham Commission. The same suggestion reposes in the service revolver. So we have continual assault and battery, mayhem, and even homicide committed by policemen on our streets; and that strange immunity from penalty, the curious feeling that somehow the policeman is not a citizen but is ‘the law,’ preserves the lawbreaking enforcement officer from punishment for his crimes.
The police have their arguments in justification. I have indicated the major point of the doctrine so epigrammatically put by Commissioner Roche. Behind it are a mass of tradition, a habit as to method that has become a sort of common law of police work, a resentment against shyster lawyers and hence against the law, a certain laziness, an ingrained notion that constabulary work is mainly fighting, excitement over an emergency of crime, a sad failure by lower-court judges and prosecuting attorneys to hold policemen within the law, a general lack of real police training, a fairly recent and greatly increasing withholding of public support from the police, a fundamental and quite genuine conviction — bred by daily contact with the outcast classes — that the ‘criminal’ is not really human and not to be included with general humanity in the sheltering guarantees of the Constitution.
And so we have a kind of law enforcement that is more akin to the vigilance committee than to the intention of American government. A highly important function becomes a struggle between two forces, both outside the law. The police could win that struggle — though they show few signs of doing it — without violating our legal system at all. The average citizen has the right to inquire: ‘ When is the establishment of law to begin?’
V
The extent of false arrests can be briefly indicated by an interesting set of statistics, compiled from a score of surveys of major cities and submitted to the Wickersham Commission by Mr. Alfred Bettman of Cincinnati. The tables, in general, showed the phenomenon of ‘case mortality’ — the tremendous discrepancy between the number of arrests made and the number of arrested persons finally convicted.
Mr. Bettman commented: ‘A large percentage without conviction is as compatible with the conclusion that an excessive number of innocent persons were arrested as with the conclusion that an excessive number of guilty persons escaped punishment.’ Or, I would add, if not ‘innocent’ persons, at least persons against whom the police, at the moment of arrest, had no sufficient evidence on which to base a reasonable suspicion of guilt.
Not to burden this column with figures, I shall merely state that in the cities of New York. Chicago, Cleveland, Baltimore, Milwaukee, Cincinnati, and the four largest Pennsylvania cities, the police made, in one specimen year, 84,866 arrests on felony charges. And the police, or the first magistrate who had the chance, — that is, the arraigning judge, — let 39,861 of them go.
These figures indicate a possible factor of police error, in the arresting process, of 46 cases in each 100. True, such error might be genuine — as when a shot is heard upstairs, a man comes running downstairs, is arrested, but proves to be a frightened tenant. Or some cases might have been ‘squared’ — but not many, in this tabulation, for the usual way of squaring a felony charge is to reduce it to a misdemeanor, and these were outright releases. Again, there might have been evidence enough to legalize the arrest, but not enough to warrant holding for trial. In practice, however, arraigning magistrates will ordinarily pass cases on to the grand jury or trial court if there is any real indication of guilt at all. Deduct some from the 46 per cent, but not too much, for these considerations; what remains represents false arrests.
But false arrests undoubtedly occurred in many of the cases that were not discharged on arraignment — that were passed on higher up, and even convicted. In an unknowable number of the cases in the 54 per cent, the arrest was made on guesswork, but was ‘ made legal’ — by investigation or by grilling the suspect — in the unlawful detention period before the formal charging. This being a matter of common observation, I have no hesitation in saying that the figures indicate false arrests in half, or more than half, of the total of felony charges.
This seemed so extraordinary a deduction that I followed it further. Taking annual police-department reports for 1929 from New York, Detroit, Washington, Baltimore, Los Angeles, St. Louis, and Denver, I eliminated traffic citations and the like and found a total of 689,962 arrests for every class of crime, misdemeanor, and felony together. And the reports again showed that 338,702 of these persons were released by the police themselves, or by the first magistrate who had the chance. Since these are but a few cities, and since false arrests that were afterward ‘made good’ are not included, may it not be that the total of false arrests in this country runs in excess of a million a year?
A New York business man who owns an office building in Dallas, Texas, went thither in 1930 and, having a phone call to make, went into three telephone booths in succession. He was arrested by a patrolman on the charge of stealing nickels from pay telephones. They locked him up for forty-eight hours, and on his release he told his story to a local editor. Investigating, the editor found that in the first three months of 1930 there had been 1823 persons arrested and booked ‘ on suspicion ’ in Dallas; they had ‘served’ 41,000 hours in jail before being released.
Such kidnapping goes on recklessly. Patrolmen and detectives are not always to blame; usually they are ordered to keep up a certain ‘ record of arrests,’ whether there be crimes or no. In Wichita, for a year past, there has been a ‘ drive’ against ’floaters.’ Scores of men whose clothes were n’t fashionable have been thrown into jail for no legal offense whatever, merely to make them leave Wichita. Picture the usual concomitants of false arrest — the bullying, the verminous and crowded cells, the acquisition of the suspect’s cash by a shyster lawyer, the grilling by detectives on a fishing expedition for evidence, often the attaching of a ‘police record’ to an innocent man’s name — and it seems obvious that the system breeds anarchy, cynicism, hatred of the law, crime.
VI
Time to investigate — after the arrest, since not before — is essential to this hindside-before plan of police work. That arrested persons shall be taken before magistrates and formally charged, at the earliest available moment after arrest, is the mandate of the law. This being inconvenient, the police quite commonly delay the formality of producing their victims in court.
This practice is entering into the new common law. In many cities one extra day’s delay is now considered legal; in others, two extra days arouse no comment. In New York, where night courts exist to speed the process, police at times do not ‘arrest’ the suspect, but merely force him to stay around for questioning. In Chicago, Leo V. Brothers was captured for the Lingle murder on December 21, 1930; but he was not ‘arrested’ until January 12, twenty-one days later. Meanwhile he was held captive at hotels.
In Philadelphia they call it ‘ putting a man in cold storage,’ and cases of which I have a record show ‘coldstorage’ periods of four, six, nine, and sixteen days — the place of confinement being police headquarters. Detroit uses the term ‘sending a man around the Loop,’ which means shifting him from one to another outlying station house. The complete Loop journey takes a month, but it may be shortened by a man’s confession, or his agreement to leave Detroit. Of late this practice seems declining in Detroit. Significantly enough, it bred a crop of shyster lawyers called ‘writ attorneys,’ who made their living by getting Loop prisoners free on writs of habeas corpus; and this, in turn, irritated Detroit’s judges into uniformly delaying the operation of the writ of habeas corpus for twenty-four hours after its time of granting. Thus does police pressure bend the law.
In Buffalo, a girl witness was held thirty-six days in a gang case, then released without being used to testify. Four to six days’ detention is not uncommon. So it is in most cities; San Francisco and Boston were the only cities, among those I visited for the Wickersham Commission, where the law requiring prompt production was strictly observed.
Illegal detention furnishes the time and place factors for the police inquisition. It is within the control of the local judges. Those who tolerate it are tolerating the third degree.
VII
If the term ‘third degree’ be applied only to cruel and abnormal forms and grades of torture, plenty of cases can be cited, but still they are exceptional. If it be taken to include any use of physical violence to make a man confess, — slaps, shoves, blows, kicks, beatings with soft weapons or with hard, — it is absent from a few cities, occasional in many, and current custom in the two largest. If it be taken also to cover threats, lies, display of weapons, exhausting grilling, and the like, it is the exceptional American city where it does not exist. If it be interpreted to refer — as I think it should — to the secret police inquisition of whatever type where the demand is made that the arrested person incriminate himself, and the Fifth Amendment is thereby breached, then the third degree is all but universal.
Boston, Cincinnati, and Philadelphia have the non-violent type of inquisition. Boston’s police, moreover, seldom delay the production of an arrested person in court, and lose the custody of him the moment that is done. Street beating, too, is at a minimum. Here is probably the most nearly law-abiding department in the country, and it shows what can be done virtually within the law. When police officials say that they cannot obtain confessions without either violence or extended custody, one may cite Boston, which obtains plenty of confessions without either abuse. The key to Boston’s method is extreme promptitude. The moment an arrest on a serious charge is reported from a station house, detective officers of a certain skill in questioning go thither by automobile, and the questioning begins before the arrested man has time to think. Simultaneously there is outside work by detectives; if contradictions develop between the arrested man’s statements and their findings, the trick is done. This plan has been in force for years, and it works so fairly that I wonder why other departments have not imitated it. However, the essential breach — the direct demand for the confession — remains.
Cincinnati and Philadelphia employ merciful and skillful methods of questioning; but this usually takes several days. Merely the elimination of violence is so unusual a gain, however, that one pays real tribute to the men — Inspector Kirgan in Cincinnati, and Inspector Connelly in Philadelphia — who have brought it about. The more one studies the American police picture, the more does one grow thankful for the mere replacement of brute violence by humanity and brains.
There are quite a large number of cities in which violence is applied only to the harder cases, and some assurance is felt that a man is guilty before he is roughly handled. These include Newark, Buffalo, Cleveland, apparently Detroit (though my information does not cover the recent change in administration), and probably Los Angeles, where violence has diminished of late under pressure by the Bar Association. This ‘controlled third degree’ is typical of the better-disciplined departments; the inquisitorial process is administered by officers rather than by ordinary detectives. Always, however, it has a strong color of threat. In Newark, a table may be piled with lengths of rubber hose or other weapons, put there for effect; frequently the method of working on a man’s emotions to break him down is highly melodramatic.
So, in Buffalo, in the Bennett case, a private detective who had posed as this arson suspect’s friend entered the cell, flung himself on his knees, and implored Bennett to confess so that he himself might go free. Buffalo’s usual system is that of continued confinement in crowded cells where sleep is out of the question, coupled with harassment day and night by headquarters men who continually suggest to the suspect that he ought to confess. But in all these cities there have been instances of violence whenever resistance to confession was obstinate. And in the Colletti case, in Cleveland, the marks of a severe beating over the hips and kidneys were seen by five outside witnesses, who credited the lad’s statement that he had been pounded into confession by the application of a soft weapon, presumably a rubber hose. In eighteen months’ time the Los Angeles Bar Association committee investigated two hundred complaints of alleged violence, and considered that about fifty of them were well-grounded.
New York, Chicago, San Francisco, and Seattle have, finally, the decentralized third degree, in which the inquisitorial beating is administered by detectives of minor rank on the various squads, or (in Seattle) by the uniformed police. And here is where the worst abuses enter. In New York, where station houses are used in preference to headquarters, a veteran reporter, Emanuel H. Lavine, and other investigators as well, tell of constant beatings, with weapons ranging from the rubber hose to the night stick and blackjack; the rhythmic kicking of shins or tapping of heads with clubs; the lifting of women by the hair. In Chicago, just prior to the recent change in régime, tear gas was used, and there were cases in which men were suspended upside down by steel shackles that cut their ankles. A favored Chicago device is that of knocking men reeling by blows of a telephone book upon the ear. It leaves no marks — which seems to be the major limitation in the decentralized third degree, as is illustrated by the San Francisco technique of striking the suspect with the fist in the pit of the stomach.
But I need not dwell upon horrors. The list of 103 appellate cases, in the law books, tells of arrested men flogged with whips, having their arms twisted, being made to hold the hands of murdered corpses in morgues. Such things occur, and have occurred all through history, whenever star-chamber inquisitions are held over defenseless persons by brutal men. They are, of course, exceptional. But the exceptions betray the potentialities of the essential malpractice, which is the secret pre-trial court of inquisition itself. It has no sanction in law.
Every confession that goes before a court of law begins with the formula: ‘This statement is freely and voluntarily made, and is not made as the result of either threat, violence, or inducement.’ That is nearly enough on the matter of police perjury; for the police usually write the confessions.
Where challenge occurs, perjury rises to the occasion. The suspect is declared, by files of detectives and officers who take the stand, to have ‘fallen downstairs’; to have ‘become quarrelsome in his cell and been beaten up by cell mates’; to have ‘fallen off a bench and bumped his head.’ A man in Detroit died, last November, from such a ‘ fall.'
There is routine perjury, too. In all drunken-driver cases in a certain city, it was noted that invariably ‘the defendant’s eyes were glassy, his speech was thick, he staggered as he dismounted from the car.’ The court required such evidence to convict. Accordingly the evidence was forthcoming.
VIII
The police declare that we are at war with crime; that the makers of the Constitution could not have foreseen immigration, could not have foreseen unemployment, slums, prohibition, drug addiction, the automobile, the gangster, or any of the many factors that have created modern crime and made its detection difficult. The law, they argue, favors the criminal at every turn. Only by cutting through the law and using methods of direct action can they get results.
It is beyond question that our police — in certain cities, at any rate — are trying to cope with unspeakable conditions. Some criminals nowadays have an animal-like ferocity which puts the policeman’s life perpetually in danger. Policemen are being killed at a rate without precedent. The public, itself afraid to become involved in gang vengeance, turns the other way and does not assist the police. Merely to wear the uniform nowadays requires heroism, and for individual bravery I think there is no group of men more notable than the American police.
As fighters, they are excellent; and it is as fighters that they speak in demanding war powers, vigilante freedom of action, the privilege of violating every tradition of civilized restraint or libertarian tenet, in the cause, as they express it, of ‘putting down crime.’ It is as fighters that they have helped themselves generously to usurped powers.
It is always hard to convince men on the firing line that they are but adjuncts, perhaps minor adjuncts, to the main army. Our police, of course, are venturing into dreamland when they conceive of police work as having at all the power to ‘put down crime.’ We have met before this simple belief in the virtues of force, among those gifted with force. And the same naïve faith that tries to club Communism out of Communists’ heads tries, likewise, to induce the various American crime factories to shut down by bullying, jailing, and torturing their products.
Even the statistics of rising crime during the years of such activity (for the forms of police lawlessness here described are nothing new — only the public awareness of them is new) have failed so far to shake that faith. Police still believe, in spite of their lack of results, that if they can make enough arrests, compel enough confessions, lacerate enough scalps, and send enough men to prison, they will ‘put down crime.’ In this belief they ask us to suspend or countenance the already-effected suspension of highly important Constitutional guarantees. They press for leave to vindicate government by methods which are, in the language of a recent American Bar Association report, ‘essentially anarchic.’ They try to establish the reign of law by creating a governmental object lesson of its wholesale breach.
Yet in every city where there has been a renewal, even partial, of constitutionality in police work, there has been a corresponding renewal in public support and helpfulness to the police, and an increased efficiency in detective work and in coping with crime. The facts certainly seem to indicate that the Constitution is still quite capable of working, if given the chance, far better than the unconstitutional methods which the police have adopted. Normality, decency, and official integrity may command respect among delinquent classes, where brutality but drives it away. It is not safe for government to be at its ugliest in dealing with the half-assimilated, half-rebellious people whose loyalty it urgently needs to win.
‘Make a friend of every business man and a bitter enemy of every crook,’ advised an old-time police instructor to his class of new recruits. So public enemies are manufactured. We need faith in Constitutional justice ourselves, to counteract the faith of officialdom in lawless force. Organizations and individuals who are trying to bring police departments back into line with legal constabulary work, and end the excesses which are making the police our rulers rather than our fellow citizens and agents, find sanction for their concern in the words of AttorneyGeneral William D. Mitchell: ‘Nothing has a greater tendency to beget lawlessness than lawless methods of law enforcement.’