Wednesday, June 08, 2016

The Origin of the Law of Torture: A Cautionary Tale

[This is a passage I just wrote for a chapter of my current book project, Legal Systems Very Different from Ours. I thought my blog readers might find it of interest.]

People in the past worried about convicting the innocent too. In the early Middle Ages, they had a solution–let God judge. A defendant could be subjected to an ordeal, such as plunging his hand into boiling water, carrying a red hot iron, being dumped bound into water. Various passages in the Bible were interpreted to imply that God would reveal guilt (hand injured or body sank) or innocence (not injured, floated). Since God was omniscient, it was an approach that guaranteed a correct verdict.

The use of ordeals was eventually abandoned on theological grounds. A more careful examination of the biblical passages found little support for it, and it could be viewed as an attempt by humans to compel God to serve them, religiously dubious. In 1215, the fourth Lateran council rejected the religious legitimacy of judicial ordeals and banned priests from participating in them. Over the next few decades most European countries abandoned their use.[1]

That left medieval judicial systems with the problem of finding another way of being certain a defendant was guilty. The solution was to impose a very high standard of proof,  evidence “clear as the noonday sun.” Conviction required either two unimpeachable eyewitnesses to the crime or a voluntary confession. Circumstantial evidence, however strong, was insufficient.

In the history of Western culture no legal system has ever made a more valiant effort to perfect its safeguards and thereby to exclude completely the possibility of mistaken conviction. But the Europeans learned in due course the inevitable lesson. They had set the level of safeguard too high. They had constructed a system of proof that could as a practical matter be effective only in cases involving overt crime or repentant criminals. Because society cannot long tolerate a legal system that lacks the capacity to convict unrepentant persons who commit clandestine crimes, something had to be done … .(Langbein 1978)

The solution was the law of torture. Once the court had half-proof, one eyewitness or the equivalent in circumstantial evidence, the defendant could be tortured into confessing. A confession under torture was not voluntary, but that problem could be dealt with. Stop the torture and the next day ask the defendant if he is still willing to confess. Since he is now not being tortured, the confession is voluntary. If he doesn’t confess, torture him again.

John Langbein, my source for this account, offers a parallel story in modern law. Two hundred years ago, jury trials were short:

In the Old Bailey in the 1730s we know that the court routinely processed between twelve and twenty jury trials for felony in a single day. A single jury would be impaneled and would hear evidence in numerous unrelated cases before retiring to formulate verdicts in all. Lawyers were not employed in the conduct of ordinary criminal trials, either for the prosecution or the defense. The trial judge called the witnesses (whom the local justice of the peace had bound over to appear), and the proceeding transpired as a relatively unstructured “altercation” between the witnesses and the accused. In the 1790s, when the Americans were constitutionalizing English jury trial, it was still rapid and efficient. “The trial of Hardy for high treason in 1794 was the first that ever lasted more than one day, and the court seriously considered whether it had any power to adjourn… .”
Over the years since, trials have become longer and much more complicated, at least in part to reduce the risk of convicting the wrong person. Patricia Hearst’s trial for bank robbery lasted forty days. That was unusually long, but the average felony jury trial in Los Angeles in 1968 took 7.2 days, more than a hundred times the length of a felony trial in the Old Bailey in the 1730’s. If every felony conviction in the U.S. took that long, felony trials alone would require the full time efforts of more than the total number of judges in the state and federal systems.[2] Also the full time efforts of close to a million jurors, court attendants, and the like. Not impossible, but very expensive.

The American legal system found a less expensive alternative. Like its medieval predecessor, it substituted confession for trial. The medieval confession was motivated by the threat of torture. The modern version, a plea bargain, is motivated by the threat of a much more severe sentence if the defendant insists on a trial and is convicted. Like the medieval version, it preserves the form–every felony defendant has the right to a jury trial, a lawyer, and all the paraphernalia of the modern law of criminal defense–while abandoning the substance. Conviction after a lengthy and careful jury trial is, arguably, evidence of guilt beyond a reasonable doubt. The willingness to accept a sentence of a year, possibly a year already served while awaiting trial, instead of the risk of ten years if convicted is not.



[1] For details see  Leeson, Peter, “Ordeals.”
[2] In the U.S. in 2006, an estimated 1.2 million persons were convicted of a felony. If each of them had had a jury trial of 7.2 days the total would have been 8.6 million trial days. Assuming that courts function five days a week, 52 weeks a year, felony cases alone would have required the full time effort of 33,000 judges. Add in a few more for the trials of defendants who were acquitted. There are about 30,000 judges in the state judicial systems, and another 1,700 in the federal system.

14 Comments:

At 3:10 PM, June 08, 2016, Anonymous Max said...

Safe to say, if all felonies went to trial they would not last an average of 7 days. Cases that go to trial today are weighted toward the complex and serious.

 
At 8:46 AM, June 10, 2016, Anonymous Laird said...

Interesting. Thanks for posting this.

 
At 11:46 AM, June 11, 2016, Blogger The X Plex said...

Hi. I haven't commented here before.

Does anybody think that having a longer trial violates a person's right to a fair a speedy trial?

read on this blog http://gunsandbutter.blogspot.com/2012/01/criminal-law-how-long-does-criminal.html that, "This phase is where the case is argued by the prosecutor and the defendant's attorney in front of a jury and the case is decided in favor of the prosecution or the defense. This portion of the process usually takes about a total of 4 days to 2 weeks. In extremely difficult cases it may take a few months."

The next phase as it says, "The next phase in both felony and misdemeanor cases is the Pre-Sentencing Investigation phase. This part of the trial process usually takes 1 to 12 months after the conviction to be completed." It continues, "The sentencing phase is the final part of the trial process.

This usually occurs between 1 and 12 months after conviction." These could be considered lengthy trials and could constitute a violation of the 6th amendment, which states, "in all criminal prosecutions, the accused shall enjoy the right to a speedy trial."

 
At 1:03 PM, June 14, 2016, Anonymous Kurt Droffe said...

I am sure your read a lot about law and torture in the middle ages, but if you know to read some german you shouldn't miss the paper of Johannes Fried:
Wille, Freiwilligkeit und Geständnis um 1300. Zur Beurteilung des letzten Templer-Großmeisters Jacques de Molay, in: Historisches Jahrbuch 105 (1985), S. 388–425.
It's great scholarship and a thrilling read (torture as the means "to set free" the mind of the defendant), based on a thorough examination and knowledge of the law of the church as the foundation of the practice of "torture".

 
At 6:48 PM, June 16, 2016, Anonymous Nick said...

The current criminal reform push seems to be on the side of regulating away the police/prosecutor conduct that yields false confessions/coercive plea bargains. This analysis would be important with respect to the potential flooding of the system with longer prosecutorial efforts. That potential, of course, rests in part on prosecutors and police continuing to arrest and prosecute at such high rates.

Do you have any thoughts as to whether the rates of prosecution would drop if the confession (implicit torture) method is regulated as current criminal reform advocates hope? My inclination is no but primarily because I'd imagine other methods of coercion to be employed after first-wave regulatory reforms protecting criminal defendants are adopted--which is a different argument. The obvious alternate path is to make less conduct criminal in the first place.

 
At 9:11 AM, June 17, 2016, Blogger Ilíon said...

"In the early Middle Ages, they had a solution–let God judge. A defendant could be subjected to an ordeal, such as plunging his hand into boiling water, carrying a red hot iron, being dumped bound into water. Various passages in the Bible were interpreted to imply that God would reveal guilt (hand injured or body sank) or innocence (not injured, floated). Since God was omniscient, it was an approach that guaranteed a correct verdict."

It should be kept in mind that the "ordeal" and the "trial by combat" of the early Middle Ages entered Western legal theory because our civilization was at that time being rebuilt almost from the ground up after having been swamped by Germanic barbarian conquerors who were, at best, demi-Christianized.

"The use of ordeals was eventually abandoned on theological grounds. A more careful examination of the biblical passages found little support for it, and it could be viewed as an attempt by humans to compel God to serve them, religiously dubious."

Or, in other words, once the Germanic conquerors were more than demi-Christianized, once their cultures were informed by Christianity, those cultures began to be re-formed, and the barbaric elements which were in conflict with Christianity began to be eliminated.

 
At 5:40 PM, June 17, 2016, Anonymous Anonymous said...

Saturday Night Live covered this back in 1978:

http://snltranscripts.jt.org/78/78dyork.phtml

 
At 11:34 AM, June 22, 2016, Anonymous Anonymous said...

I would assume that it is fairly obvious after a while that no one is ever saved by God. How come no one noticed? Or perhaps the serious offences where an ordeal is in place were rare enough that it wouldn't be clear? But still, they were at it for hundreds of years during which time exactly 0 people made it through the ordeal?

 
At 7:27 AM, June 27, 2016, Blogger David Friedman said...

Anonymous:

I think you have it backwards. If Leeson is correct, most people made it through the ordeal.

Ilíon: I'm not certain, but I think Iceland abolished trial by combat before it went Christian.

 
At 5:44 PM, June 30, 2016, Blogger The X Plex said...

Trial by combat was abolished while Iceland transitioned to Christianity, but it had nothing to do with Christianity.

"Many sagas describe berserks who abused holmgang in this way. In large part due to such practices, holmgangs were outlawed in Iceland in 1006, as a result of the duel between Gunnlaugr Ormstunga and Hrafn Önundarson,[2] and in Norway in 1014."
https://en.wikipedia.org/wiki/Holmgang#The_Holmgang_in_history

"Iceland was Christianized in approximately 1000 AD. In Icelandic, this event is known as the kristnitaka (literally, "the taking of Christianity")."
https://en.wikipedia.org/wiki/Christianization_of_Iceland

 
At 6:44 PM, June 30, 2016, Blogger Ilíon said...

^ Nothing? Nothing at all?

 
At 7:09 PM, July 03, 2016, Anonymous Anonymous said...

https://en.wikipedia.org/wiki/Gunfight_at_the_O.K._Corral

This happened long after Christianization of vikings and germanic peoples. I believe people tend to adapt to the "territory" and get by, and later, when they grow tired of the same old thing, they gladly welcome new customs in these little social hobbies known as "law", "trials", "torture" and "punishment".

 
At 6:01 PM, July 06, 2016, Blogger The X Plex said...

+llíon
According to the Wikipedia sources yes. But in reality, maybe there was some influence of Christianity in the abolition of trial by combat. This might be a good place for further research.

 
At 11:07 PM, July 06, 2016, Blogger Ilíon said...

There were Christians amongst the Icelandic population from the early settlement, and their percentage of the population only grew over time -- of course they and their religion influenced the direction the culture, and the laws reflecting that culture, developed.

 

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