Commentary: We Talk about Qualified Immunity, How about Police Accountability for False Confessions and False Testimony?

By David M. Greenwald

A recent focus in police reform has zeroed in on qualified immunity.  This is an important focus because qualified immunity helps to protect not only law enforcement officers, but all state and local officials from individual liability—unless that official violated a clearly established constitutional right.

It is a key factor preventing police, for example, to be held accountable personally.

In a op-ed in the Philadelphia Inquirer by Civil Rights Attorney Jonathan Feinberg and Lauren Bonds, the  Legal Director of the National Police Accountability Project, they noted this “legal rule created by judges … has left a gaping loophole in the rules that apply to everyone else who causes harm to others when they are doing their job.”

As they explain: “Qualified immunity requires a person bringing a lawsuit to prove that their ‘clearly established’ rights were violated—that is, that a Court previously ruled that an officer acted improperly in a factually similar case. Even if a police officer’s conduct is plainly unlawful, they can be shielded by qualified immunity if no prior officer has been sued for identical behavior.”

They note, “Qualified immunity communicates to police officers that they are above the law and tells them they can act with impunity.”  But they also add, “As recent experience tells us, without accountability, it’s difficult to prevent officers from engaging in misconduct. Recent experience also tells us that there is a growing and broad consensus that police officers should face real legal consequences when they abuse their authority.”

A key point, though, that I keep attempting to make here is that we underestimate police misconduct when we focus narrowly on officer-involved killings.  That’s not to downplay their importance, but it creates a perception that police abuse is narrow.  The 1000-plus police killings each year is far too high—far higher than any other industrialized nation, but those numbers are small compared to a broader problem of police misconduct, use-of-force complaints, the violation of constitutional rights, and far more.

Take, for example, police interrogations.  Their use has done away, for the most part, with the “third degree.”  While things like the Chicago torture happen, they are comparatively rare.  What is not rare is the use of other coercive techniques to elicit confessions from suspects.  The Reid nethod is still in use.

The “overwhelming majority of PhD social scientists who research and write about the Reid method of interrogation believe that it can be and sometimes is psychologically coercive” and increases the risk of false confessions, Professor Richard Leo of University of San Francisco told the Guardian in 2019.  He is the author of several definitive studies on police interrogation.

“The Reid technique really capitalizes on the fear and the weaknesses of the person who is sitting in front of the interrogator,” said Keren Goldenberg, a criminal defense lawyer in Massachusetts.

Alan Hirsch, the chair of the justice and law studies program at Williams College, told the Guardian, “The suspect concludes that confessing is the best or even the only way out … It breaks down innocent people as well as guilty people. It’s too effective.”

The Registry of Exonerations has found that false confessions are among the leading causes of wrongful convictions, and experts like Leo have found repeatedly that jurors will take confessions at face value—even in the face of overwhelming countervailing evidence that the individual could not have committed the crime.

One big problem—police can lie to suspects.  They can fabricate evidence against them.  They can use all sorts of techniques.

Illinois, which two decades ago in the wake of the Torture Scandal banned the death penalty, made news last week becoming the first state to ban police officers from lying to minors during interrogations.

It’s a start for sure.

“Chicago is the wrongful conviction capital of the nation, and a disproportionate number of wrongful convictions were elicited from Black youth by police who were allowed to lie to them during questioning,” state Sen. Robert Peters, one of the bill’s sponsors, said in a statement. “That ends now.”

The law may not be strong enough.  It simply says that if a law enforcement officer knowingly provides “false information about evidence or leniency” during an interrogation, any statements from someone under 18 would be inadmissible as evidence in court.

“The history of false confessions in Illinois can never be erased, but this legislation is a critical step to ensuring that history is never repeated,” Cook County State’s Attorney Kim Foxx said in a statement. “I hope this is a start to rebuilding confidence and trust in a system that has done harm to so many people for far too long.”

But, given what we know about false confessions, this law doesn’t go nearly far enough.  But again, it’s a start.  One problem—there is no punishment for officers who lie during interrogations.  Nor is there anything to address officers who use deceptive tactics outside the interrogation room and, of course, it would have to be proved that a knowing lie was told.

Finally, I would argue that it should be improper for the government to lie to people to get them to confess to a crime  Many times even innocent people will confess, believing it is their only option—and in some cases, over time, they begin to doubt their own memory.

The consequences here are dramatic.  People end up going to prison, sometimes for decades, sometimes suffering irreparable harm, and police are never held accountable for their conduct.

One of the big problems here is once police focus in on a suspect and break them during confession, often ignoring evidence that points to someone else.

And yet when these types of misconduct occur, not only is it not discovered for years and maybe decades, but police are never held accountable.

False confessions account for about 25 percent of all wrongful convictions.  Another 17 to 20 percent of wrongful convictions involve the false testimony by informants.  This is not just on police but also prosecutors, but, in many of these cases, the police and prosecutors offer leniency or even freedom in exchange for testimony.  The problem is that often that testimony is manufactured by the police or prosecutors to apprehend their target at the expense of the truth.

But, guess what, neither police nor prosecutors can generally be personally held responsible for their actions that lead to wrongful convictions of people.

How many people are we talking about here?  A lot.  We don’t have an exact figure on the number of wrongful convictions.  We know that since the death penalty was reinstituted in the late 1970s roughly four percent of those sentenced to die were later exonerated.  We know a good deal more about wrongful convictions for rape and murder cases than we do other cases.  Some estimates suggest as high as 10 percent.  Often, people will plead out in order to avoid longer sentences.  Since 1989, the National Registry of Exonerations has documented that 11 percent of the 362 DNA-based exonerations involved people who pleaded guilty to serious crimes they did not commit, and 18 percent of overall exonerees pleaded guilty to their crime.

The Innocence Project estimates that about 9750 people are wrongly convicted each year.  That means nearly 100,000 people each decade.  That’s about 10 times the amount of people who are killed by police each year.  Only a small percentage of those are ever exonerated.  Many will spend decades in prison and a lot of that would have been preventable with better police work.

—David M. Greenwald reporting

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