The Racial Politics of Due Process Protection

• Published date: 01 March 2017
• Date: 01 March 2017
• Author: Jason T. Carmichael,Stephanie L. Kent
• DOI: 10.1177/0734016816684925
• Subject Matter: Articles

Article

The Racial Politics of Due Process

Protection: Does Partisanship

or Racial Composition Influence

State-Level Adoption of

Recorded Interrogation Policies?

Jason T. Carmichael

1

and Stephanie L. Kent

2

Abstract

Discoveries of wrongful convictions have increased substantially over the last several decades.

During this period, practitioners and scholars have been advocating for the adoption of policies

aimed at reducing the likelihood of convicting a person for a crime they did not commit. Imple-

menting such policies are vitally important not only because they help ensure that the innocent do

not receive unwarranted sanctions or that the guilty go unpunished but also because cases of

wrongful conviction can erode public confidence in the criminal justice system and trust in the rule of

law. To avoid such outcomes, many states have adopted policies through legislation that aim to

reduce system errors. It remains unclear, however, why some states appear more willing to provide

due process protections against wrongful convictions than others. Findings suggest that dimensions

of racial politics may help explain the reluctance of some states to adopt protections against

wrongful convictions. Specifically, interaction terms show that states with a Republican governor and

a large African American population are the least likely to adopt policies aimed at protecting against

wrongful convictions. We thus identify important differences in the political and social context

between U.S. states that influence the adoption of criminal justice policies.

Keywords

wrongful convictions, due process, recorded interrogations, policing, politics of crime control.

A wide-body of literature has pointed to the prevalence of false confessions during police inter-

rogations and the resulting wrongful convictions (e.g., Dixon, 2006; Feld, 2014; J. Gould & Leo,

2010; Huff, 2002; Kent & Carmichael, 2015; Leo, 2008; Leo & Richmond, 2007; Sullivan, 2005;

Thompson, 2012; Trainum, 2016). These scholars advance very compelling arguments in favor of

1

Department of Sociology, McGill University, Montreal, Quebec, Canada

2

Department of Sociology and Criminology, Cleveland State University, Cleveland, OH, USA

Corresponding Author:

Jason T. Carmichael, Department of Sociology, McGill University, Montreal, Quebec, Canada H3A2T7.

Email: jason.carmichael@mcgill.ca

Criminal Justice Review

2017, Vol. 42(1) 58-76

ª2017 Georgia State University

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DOI: 10.1177/0734016816684925

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mandatory recording of police interrogations to reduce the likelihood of false confessions. Despite

calls for legislative change in this area, data from the Innocence Project show that the vast majority

of U.S. states have failed to adopt policies mandating police to record interrogations of suspects. To

date, scholarship has failed to account for the reluctance on the part of most state-level policy makers

to implement such policies. The primary aim in this study is to better understand why some states

appear to be resisting a mandate for police to record custodial interrogations of criminal suspects.

This is particularly troubling given that Garrett (2011) and the Innocence Project estimate that 15–

20%of wrongful convictions between 1989 and 2007 were caused by false confessions coerced by

police during custodial interrogations (innocenceproject.org). These false confessions, which are

typically gained through intense psychological pressure and other coercive tactics employed by the

police, could be prevented by simply requiring the recording of interrogations (Leo & Richmond,

2007; Trainum, 2016). Yet less than one in three U.S. states have instituted laws that mandate the

electronic recording of custodial interrogations (Innocence Project, n.d.). That so few states require

mandatory recording remains baffling, particularly given the relatively low cost (as compared to

other policies such as DNA preservation) associated with instituting such a policy.

Brief Overview of Recorded Interrogation Literature

Scholarship has outlined both the benefits and costs associated with required recording of custodial

interrogations. Sullivan (2005), for instance, provides a thorough explanation of the benefits. First,

recordings expose and thus aim to prevent police misconduct, which protects suspects, but also

officers, from unjustified charges of abuse. Second, recordings provide juries with clear evidence

from confessions and inconsistencies in statements thereby alleviating the problem of conflicting

testimony from suspects and law enforcement. Third, officers are able to focus on nonverbal cues

from suspects because they do not have to record details of the interrogation on paper. Fourth,

recordings can serve as training materials to police recruits who are learning interrogation tech-

niques. Finally, recording interrogations suggest to the public that the criminal justice system is

dedicated to protecting a suspect’s due process rights.

The disadvantages outlined by Sullivan (2005) are fewer, and the main resistance to these laws

comes from law enforcement agencies. One potential concern with recording is that suspects may be

less likely to confess or witnesses less likely to be forthcoming when they know they are being

recorded. Second, law enforcement agenc ies may be skeptical of proposals from academi cs or

defense attorneys whom they perceive as unsupportive of or unfamiliar with police work. Finally,

police agencies claim that recording is either too expensive or not feasible (Kassin, Leo, Meissner, &

Richman, 2007). But these arguments are not supported by empirical research (Leo & Richmond,

2007). Leo and Richmond (2007) claim that the initial costs of maintaining electronic recording will

pay off in the long run because multiple interrogators need not be presen t to take notes (as is

frequently required when interrogations are not recorded), and officers themselves will spend less

time writing statements. And there are additional cost savings. There are fewer trials when police

have recorded evidence (Sullivan, 2006). There may be fewer expensive litigation claims related to

police misconduct when recordings provide clear evidence of interrogation tactics (Leo, 1996) and

fewer cases of wrongful conviction that must be later ameliorated.

1

Furthermore, multiple studies

show that recording interrogations does not decrease the ‘‘hit rate’’ of confessions or incriminating

statements made by suspects (Leo & Richmond, 2007; Sullivan, 2005) perhaps because many states

can legally record interrogations without notifying suspects (L. Oliver, 2005). Even when suspects

are notified, Slobogin (2003) reports that they are not deterred from speaking candidly. Finally,

evidence from the police themselves runs counter to the argument that they are disadvantaged in

some way by recording. Buckley and Jayne’s (2005) survey of police in Alaska and Minnesota found

that officers believed that recording was more beneficial to prosecutors than defense attorneys.

Carmichael and Kent 59