More on torture, liberty, and cowardice

Cowardly action, such as torture, generally fails to avoid the danger it fears. The history of policing provides a good example: tightening up on coerced confessions forced departments to get smarter, in the long run reducing crime rather than increasing it.

As Franklin warned, those who sacrifice liberty (or, he might have added, common decency) for safety not only deserve neither, they mostly wind up having neither. Fear is a bad counsellor, and gives lousy advice.

Jack Needleman of the UCLA School of Public Health reminds me of a well-known example. In what many reactionaries regard as the good old days, police had, in practice, the option of beating confessions out of suspects, and then lying about it. That bred lazy and dishonest cops and departments, which tended to be do a mediocre job of enforcing the law and controlling crime.

Then that horrible activist Warren Court came along with Miranda and the exclusionary rule, which had the intent and effect of reducing coerced confessions. Some guilty people went free as a result. and the professional and amateur fearmongers made an awful fuss, claiming (and convincing most of the voters) that obeying the Constitution would have costs in the form of increased crime and was therefore A Bad Thing. But those stubborn, elitist, unelected judges just kept on keeping on, insisting that the privilege against self-incrimination meant that a defendant couldn’t be beaten with rubber hoses until he confessed.

And guess what? The cops complained, but they also adapted. Getting convictions without coerced confessions required them to get smarter, and so they did. They also got more honest &#8212 not perfectly honest, since “testilying” still goes on and still gets covered up, but substantially more honest. And honesty about the interrogation process spilled over to intolerance of financial corruption.

The result, over time, was the burst of organizational reform and innovation that has made policing one of the best-managed public services in most cities, and contributed substantially to the crime decline of the past ten years.

So it turned out that there wasn’t actually a tradeoff between honoring the Constitution and controlling crime. I’d be willing to be heavily that the same is true of terrorism: that torture at Abu Ghraib, at Guantanamo, and in the network of secret prisons has, on balance, made the country less safe rather than more safe, both by increasing the number of people who hate the United States enough to do something about it and by morally degrading the people and organizations we rely on for our defense.

That’s not the only reason to be against torture; it would be wrong even if it worked. But it’s a good reason, all the same. As Jack remarks, “Fear makes smart people stupid and not-so-smart people even stupider.

Courage is a necessary civic virtue.”

A different reason is that being a torturer, or hiring torturers, or voting for torturers, is unworthy of the citizen of a free country. Doing so out of cruelty is disgusting. Doing so out of cowardice is contemptible. To live in fear is to live badly.

Cowards die a thousand times before their death.

The valiant never taste of death but once.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

8 thoughts on “More on torture, liberty, and cowardice”

  1. Lorenz Hart said it, and Lorenz Hart was right: "Do it the hard way, and the going's easy."

  2. Mark
    Has the reform of police departments *in the last 10 years* really contributed to the drop in crime rate?
    It seems to me the challenge of reforming police departments has been going on a lot longer than that, and the drop in crime rate is exogenous to that.
    Is there tangible evidence linking the two?

  3. I would add as well that once you torture someone, you spend as much time, or more time, trying to cover up the torture as you do trying to fight crime (or the war on terrorism, as the case may be). Indeed, you forego steps that could help fight crime (such as trying the suspect, or making him or her available for interviews by other countries' intelligence services) because it might also disclose the torture.

  4. What an *interesting* timeline! The Warren Court's expansion of criminals' rights in the sixties led "over time" to more professional police practices and dropping crime rates–starting in the early *nineties*. No mention of the *explosion* in crime rates in the intervening years, nor of the Supreme Court's slow *backtracking* on criminals' rights since the 1980's. (Or of the many other law enforcement trends–in sentencing, police oversight, police budgeting, and so on–that followed a very similar trajectory.)
    I know you're a partisan, Mark, but you're also a respected social scientist. This kind of argument is, to put it bluntly, unworthy of you.

  5. Mark, this "just so" story is wrong on the history, as Dan suggests, and wrong on the meaning of Miranda. You can do better than this, and you'd be wise to consider the real costs of Miranda, to the country, to the Court, and to the Constitution, not to mention to your party, before analogizing to new circumstances.

  6. Thomas
    I cannot see how the Miranda rights, in and of themselves, have been this huge negative consequence to the US.
    What used to happen (in the UK as much as the US) was the police stitched someone up for the crime. Anyone who they thought was guilty 'the Usual Suspects'.
    Now it is widely understood by criminologists that even signed confessions are unreliable evidence and often coerced. Indeed there is a criminologist who makes his living trying to get police departments to video all interrogations.
    Those departments who have adopted this have seen big improvements in conviction rates. Just as the best military interrogators don't torture.
    I just don't see how Miranda rights can have caused these horrific problems you attribute to them.

  7. Let me add to that.
    There have been some pretty good comments in the blogosphere about the 9-11 attackers.
    The reality is, except for bin Ladin, we have under custody the majority of the plotters, including the key organiser, KSM.
    Because they have been tortured, however, we have no way of bringing them to trial.
    Imagine the impact on world opinion, and on future terrorists, if the US could have put those men on trial, in a district court of Manhattan.
    New York has the death penalty. Super Max would have been an alternative, and in some ways worse than death.
    The world would have seen the remorseless arm of American justice, hunt these men down and bring them to a fair trial. What message would *that* send to those who would attack the United States? About the same message that hanging Tojo and Yamashita did, I would wager.
    It'll never happen now.

  8. I don't think that the Warren court invented Miranda. It is taken from a British case from the Kings Bench. It was largely repealed in 1993 by a statute that allowed a jury to infer that a later statement was false.

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