This piece will appear in a forthcoming issue of the University of Illinois Law Review.
Over the past several years there has been increased focus on the way police are treated by the criminal justice system and their own internal disciplinary mechanisms. Scholars and the media have taken note of special interrogation protections afforded to the police when they become the target of internal or criminal investigation. In the approximately 20 states with statutory law enforcement officer bills of rights (LEOBRs), and the vast majority of jurisdictions bound by local collective bargaining agreements, rank and file officers have negotiated for a number of protections, not applicable to anyone else, to shield themselves from coercive interrogation techniques. Some of the protections include time limits on questioning, limiting threats and promises made to suspects, ensuring the suspect is allowed to sleep, use the bathroom, and eat at humane intervals, and many other rights not available to ordinary citizens.
With the exception of a very few, scholars, journalists, and advocates are in agreement that these special interrogation protections are unfair, a barrier to accountability for “bad” officers, and a barrier more generally to police reform. Many authors focus their criticism on waiting periods frequently afforded to officers accused of misconduct. But some have also criticized other interrogation protections, arguing that any protection not currently given to civilians should be eradicated.
On the other hand, there is widespread agreement among scholars and criminal justice reform advocates that interrogation protections for ordinary criminal suspects are not strong enough. The constitutional limits on police through Miranda and the voluntariness test have proven ineffective to protect vulnerable and even innocent suspects from confessing against their will and interest. The exoneration of an alarming number of people who confessed to serious crimes, combined with new understanding about what lead vulnerable suspects – the young, the mentally ill, the mentally disabled – to confess have led to voluminous scholarly calls for reform. Many such reforms dovetail with the interrogation protections given to police—the very protections many would like to see stripped from the police.
In this Essay, we argue that these diverging positions, while raising legitimate concerns about distributional inequity, stand in the way of interrogation reform for ordinary citizens. But rather than eliminating many of the interrogation protections currently afforded to law enforcement officers, we argue that the law should extend many of these protections to all suspects, both civilian suspects and police suspects. The current distributional inequality is problematic for several reasons, not least because it affords the most sophisticated suspects the most protection while leaving the most vulnerable suspects at the mercy of constitutional protections that have been interpreted time and again to offer weak and limited protection.
In keeping with the theme of this symposium edition, we propose a novel method by which the federal government could combat this sort of distributional inequality in the criminal justice system, while also promoting broader reform in police interrogation procedures. We propose that Congress could use its spending power to condition federal funds to police departments on the adoption of uniform, minimum protections for both civilian and criminal suspects facing interrogations. Using existing LEOBRs and police union contracts as a model, we argue that Congress could mandate that all police departments receiving certain federal funds limit unreasonably long interrogations, ban the use of abusive or threatening language, record all interrogations, and give suspects a right to tend to physical necessities like bathroom use during interrogations. Through an examination of the existing literature on police interrogations, we argue that these protections represent the least a department can do to protect against false confessions.
Admittedly, Congress has rarely conditioned federal grants to police departments on the protection of individual rights. Nevertheless, we argue that such approach is normatively desirable and constitutionally permissible. In parts that follow, we first turn to a comparison of police suspects and civilian suspects. Then we lay out our proposal for universalizing some of the protections police currently enjoy.
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