CHAPTER 6

The “American Method”—The Third Degree

American police, but not English police, developed the interrogation method known as the “third degree”—the use of intense coercion on suspects to produce confessions. Jerome Frank wrote in 1949, “To our shame be it said that the English, who do not tolerate the ‘third degree,’ call it the ‘American method.’”1 Many of the same cultural forces operating in England also operated in the United States. One of our tasks in this chapter is to seek differences that explain why our police were willing to use physical force to obtain confessions, while the English police were not.

A. The Culture That Produced the Third Degree

Like other social phenomena, harsh police interrogation tactics did not arise in a vacuum. The early years of America’s existence were tumultuous: the War of Independence, fear of foreign invasion, molding the states into a nation, the War of 1812, and the westward expansion into the frontier. But one explanation for the third degree that we must reject is the violent, frontier nature of early American culture. If that were a factor, the American cases would have diverged from the English cases in the early 1800s. They did not. As we saw in chapter 4, one of the most robust expressions of the Hawkins-Leach dictum came from the frontier state of Tennessee in 1823.²

The Treaty of Ghent in 1814 ended the War of 1812, as well as our long-standing belligerence with England. Peace ushered in an era of great prosperity for the United States. Prior to 1850, Lawrence Friedman notes that American “opinion exuberantly believed in growth, believed that resources were virtually unlimited. … The theme of American law before 1850 was the release of energy, in Willard Hurst’s phrase.”³ Between 1850 and 1900, however, Friedman concludes that America changed in fundamental ways. “By 1900, if one can speak about so slippery a thing as dominant public opinion, that opinion saw a narrowing sky, a dead frontier, life as a struggle for position, competition as a zero-sum game, the economy as a pie to be divided, not a ladder stretching out beyond the horizon.”

Unlike England, America did not have major cities until the late nineteenth century. When Georgia adopted a statute that embraced the Hawkins-Leach dictum in 1861, the largest city in the state, Atlanta, had fewer than 10,000 residents.4 Only nine American cities had populations greater than 100,000 on the eve of the Civil War. Chicago at 112,000 was the ninth largest. When the Georgia Court of Appeals staged a full-stage retreat from Hawkins-Leach in 1917,⁵ Atlanta’s population had grown to 200,000. From 1850 to 1920, New York City grew from 515,000 to 5,620,000, while Chicago grew from 30,000 to 2,700,000, and Cleveland from 17,000 to 800,000. In 1851, London already had a population of 2,600,000.⁶

Another difference between England and the United States during this period was immigration. Though England had an increase in immigration during the nineteenth century, it was but a trickle compared to immigration to the United States.⁷ From 1894 to 1914, 1.2 million immigrants entered the United States,⁸ and the character of the immigrant population changed dramatically. Prior to 1881, almost 86% of total immigrants arrived from northwest Europe, primarily from Great Britain, Ireland, Germany, and Scandinavia. Beginning in 1881, a major shift occurred in favor of immigrants from southern, central, and eastern Europe. The number of Italians, for example, living in England and Wales in 1911 was 20,389 while over 1.3 million Italians lived in the United States in 1910.⁹

It is conventional wisdom, and correct we believe, that it is far easier to mistreat those who are viewed as the “other.” That, of course, is why governments use propaganda during wars to make the enemy seem alien and demonic. It is why the Third Reich portrayed Jews as arrogant Shylocks. It is why slave owners in the American South clung to theories that blacks were subhuman and thus needed to be enslaved. A geography book published in Georgia in 1862, for example, said that members of the “African race” had been brought to North America and “humanely reduced to the proper normal condition of slavery.”¹⁰

Moreover, there was a coarsening of the American character during the latter two-thirds of the nineteenth century. Industrialization, which made humans into moving parts, probably played a part. The decline in religious fervor perhaps played a part. Once again, both of these factors were present in England as well. But a largely neglected, and unique, cause of the coarsening of the American character was the sectional strife that eventually produced the disastrous Civil War and the long nightmare of Reconstruction.

The war itself was unlike any war in history. Its scale was immense. A total of three million men “took up arms between 1861 and 1865. In the South, three out of four white men of military age became soldiers.”11 And the nature of war had changed. “With its large volunteer armies, its longer-range weapons, and its looser military formations, the Civil War thus placed more inexperienced soldiers, with more firepower and with more individualized responsibility for the decision to kill, into more intimate, face-to-face battle settings than perhaps any other war in history.”¹² The scope of the carnage was devastating. “The Civil War’s rate of death, its incidence in comparison with the size of the American population, was six times that of World War II. A similar rate, about 2%, in the United States today would mean six million fatalities.”¹³

But numbers tell only part of the story. Observers “estimated stretches of a mile or more at Antietam or Shiloh where every step had to be planted on a dead body.”¹⁴ The tide of the three-day battle at Gettysburg shifted so often that neither side could bury its dead. “So many bodies lay unburied that a surgeon described the atmosphere as almost intolerable. Residents of the surrounding area complained of a ‘stench’ that persisted from the time of the battle in July until the coming of frost in October.”¹⁵ The toll on the human psyche was almost unimaginable. “Killing produced transformations that were not readily reversible,” changing “the survivors into different men … men required to deny, to numb basic human feelings at costs they may have paid for decades after the war ended.” Many of the survivors “were never quite the same again after seeing fields of slaughtered bodies destroyed by men just like themselves.”¹⁶

The Reconstruction that followed bitterly divided the country for decades. Unlike wars between nation-states, a failed war of secession leaves deep scars within the unified country. The North deeply resented the horrible costs of the war. The president who had (barely) held together the North during the agonizing long war years was dead: the victim of a Southern assassin.

The South would not easily surrender its view of the former slaves as being inferior to whites. So-called Black Codes sprang up in an attempt to reduce freed blacks to second-class status.¹⁷ Mississippi’s 1865 Black Code made it a crime for blacks to give seditious speeches or preach the Gospel without a license from a “regularly organized church.”¹⁸ The Ku Klux Klan would for a century be the illegal and violent enforcer of white supremacy.¹⁹ Lawlessness ran, like water, through the streets of the Southern towns. A congressman reported, “Every mail … [adds] to the records of injustice and outrage.”²⁰ The policy of the rebels was “to render it so uncomfortable and hazardous for loyal men to live among them as to compel them to leave. … Others have been murdered in cold blood as a warning to all northern men who should attempt to settle in the South”²¹

Though the nation gradually re-knit, the wounds were deep and the scars visible for decades. Thirty-five years after the end of the war, the flying of a “cherished relic of the Confederacy”—the battle flag—at a residence in Dover, New Jersey caused “[l]oud-voiced threats” and an effort to tear the flag from its flagstaff.22 A “hasty retreat” occurred when what appeared to be the barrel of a rifle could be seen in a window. Though the “offensive banner” was lowered that day, the owner flew it on July 4 when all other houses were flying the American flag: “Bitter indeed was the feeling then. The people ran from house to house in a whirl of patriotic anger and gathered in turbulent knots … and chafed and fretted themselves into a colonial revolutionary mood, ready and eager for the fray.” Cooler heads prevailed and, the New York Times reported, “The [rebel] flag still flies.”

In 1894, a retired Union naval officer recounted a Civil War battle to 2,000 school children in Brooklyn. At the end of his presentation, he unfurled a “rebel flag” that he had captured during the battle.²³ The children started to applaud, thinking it was the American flag, “but as soon as the stars and bars on a field of red were revealed, the applause turned to hisses and other expressions of hatred.” That children born decades after the Civil War knew to hate the Confederate battle flag reveals much about how Southerners had been cast in the role of the “other.”

We offer one last story about the lingering, bitter residue of the Civil War, though hundreds could be culled from the New York Times archives. In 1881, a statue to Confederate General Stonewall Jackson was unveiled in New Orleans.²⁴ The Boston Traveler was critical of the erection of monuments to “rebel chiefs,” a practice that “would not be permitted in any other country.” Jackson was, after all, “an able soldier in the service of a party that sought the destruction of the Union, and the preservation of slavery.” The paper noted one “good” that would come from the statue: “It will help keep alive the conviction that the Southrons [sic] can’t be trusted, and that we must insist upon continued defeat of that party which sympathizes with the South”—at the time, the Democratic Party.

England and the United States shared a common tradition of industrialization and urbanization during the late nineteenth century. But the sectional strife that produced the Civil War and the long nightmare of Reconstruction were factors present here but not in England. To be sure, England endured a series of civil wars, from 1625 to 1649 when Charles I was beheaded and Oliver Cromwell began his commonwealth experiment.²⁵ We suspect that the effects of these civil wars were not as profound as the American Civil War. Certainly, the loss of life was far less and England did not suffer destruction of vast swathes of the country. Moreover, whatever the effects, they would have largely dissipated by the time the Hawkins-Leach dictum appears almost 150 years later. The third degree begins to appear within a decade after the end of the American Civil War.

The coarsening of the American character can be seen in the reaction to crime and deviance in the period after the Civil War. The crime rate in the nineteenth century is a “vexed and difficult subject.”²⁶ But once again, the numbers matter less than the impression. As Friedman notes, “Violent crime, particularly in the cities, becomes less tolerable in an interdependent, industrial society.”27 Partly because of urbanization, partly because of immigration, partly because of industrialization, Americans in this period were fearful. The nation was torn apart by racial prejudice, its law-and-order fabric dangerously fraying. The immigrants, particularly those who could not speak English and who frequented saloons, were perceived as the “other.” Some Italian immigrants brought with them organized crime, which became widespread in the early twentieth century. The freed slaves were perceived, in many states, as the “other.” The stereotypes of blacks critical to their enslavement did not magically disappear.

Consider the news coverage about the alleged rape of two white women by nine black youths in the Scottsboro, Alabama case, as described by historian James Goodman:

Writers and editors all over the region agreed that it was … a “heinous and unspeakable crime” that “savored of the jungle, the way back dark ages of meanest African corruption.” They were revolted by the story, but not surprised. Or if surprised, surprised only by the magnitude of the crime. They expected black men to rape white women. Blacks were savages, more savage, many argued (with scientific theories to support them), than they had been as slaves. Savages with an irrepressible sex drive and an appetite for white women. They were born rapists, rapists by instinct; given the chance, they struck.²⁸

Goodman found this news coverage in Southern newspapers, but to infer that these attitudes stayed below the Tennessee or Virginia borders is to engage in fancy. Newspapers in the North and Midwest were not as overt in their racism but plenty of it appears. It was fairly common for “human interest” stories in the North to cast blacks in a negative light. For example, an Indiana newspaper in 1866 published a story entitled “Playing Poker with a Nigger.”²⁹ It quoted a black man using an uneducated dialect, e.g., “wid” for “with” and “dis” for “this.” We searched the Newspaper Archive national database for “nigger” for the years 1866, 1867, and 1868 and found 1,561 results. While we did not count the number of stories in Northern newspapers, there were many of them. Deep-seated beliefs about race die very slowly.

Searching the New York Times archives for the word “mob” in the headline for September 18,1900, to September 17,1901, produced a window into what was a horrific time in America.

November 16,1900: “Boy Burned at the Stake in Colorado.”³⁰

December 16, 1900: “Indiana Negroes Lynched; Two Murderers Hanged in Jail Yard by Mob of 1,000 Men.”³¹

February 25, 1901: “Attempted Lynching at Matawan, N.J.; Charles Herbert Strung Up Twice by a Mob.”32

May 31, 1901: “Lynched For Stealing [Hay] Forks: Old Man, His Three Sons, and Another Man Hanged to a Bridge by California Mob.”³³

June 19,1901: “New Jersey Boy Repels Mob of Masked Men; It Had Assembled to Tar and Feather His Sister’s Fiancé.”³⁴

December 17,1900: “More Indiana Lynch Law: Third Negro of Gang Which Killed a Barber Hanged By Mob.”³⁵

July 8,1901: “Mob Attacks [Major League Baseball] Umpire O’Day.”³⁶

March 2,1901: “Prayer Precedes a Lynching: Offered by a Member of the Mob Which Hanged a Negro in Wisconsin.”³⁷

August 1,1901: “Two Women Lynched By Mississippi Mob; Mother, Son, and Daughter Put to Death.”³⁸

August 22, 1901: “Mob Kills An Italian: International Complications May Arise from a Demonstration Against Foreign Labor in Arkansas.”³⁹

We present a few examples of three archetypes that involve mob violence directed at perceived threats in the culture. One archetype is mob violence triggered by some event other than a crime—typically union activities such as a picket line. In “the United States, volcanic eruptions of labor unrest terrorized the cities in the late nineteenth century.”⁴⁰ Because that story is well known, we chose stories that involved mob violence not associated with labor unrest.

On May 12, 1901, in a “big tenement house” in “the densely settled portion of the east side” of Manhattan, “an Italian barger” killed a janitor by shooting him five times, twice in the head, once in the neck, and twice in the back.⁴¹ The cause was the janitor telling the man that the latchkey he had requested was going to cost twenty-five cents. After the shooting, “[a]n immense mob gathered, and a riot of the Italians, excited by the shooting, seemed imminent.” The dead man had contusions and lacerations consistent with being trampled by the “struggling crowd.” This story connects to our themes in two ways. First, it shows how angry and violent some parts of the country had become. Second, the writer manifested a view of Italians as different from others in his comment that “a riot of the Italians, excited by the shooting, seemed imminent.”

The second example is actually a cluster of stories from January and February 1901 about Carrie Nation. We were surprised at the depth of feeling, on both sides of the temperance dispute, which was already making itself felt around the turn of the twentieth century. Nation, with her trusted hatchet and usually accompanied by female allies, “smashed” saloons in Topeka, Wichita, and Enterprise, Kansas and in St. Louis, Chicago, and Des Moines, Iowa. Here is the Times account of Nation’s second “smashing” of Wichita saloons:

With hatchets concealed under their cloaks the women entered the saloon … and did not leave a complete piece of glass or a working slot machine in the place. All showcases, both for liquors and cigars, as well as the plate-glass windows and doors were broken into smithereens. Next they ran to [another] saloon and had everything in the front of the room, including the plate glass windows broken when [the owner] appeared with a revolver and placed it at Mrs. Nation’s head and said that he would blow out her brains if she did not desist. She yielded before the pointed revolver.42

The temperance mob moved to another saloon where it was met by police who subdued the women, though not before Nation hit a detective in the face with a poker. When the women promised not to wreck another saloon before noon the next day, the chief of police released them. Nation gave a “street lecture” to the crowd that had gathered outside the city building. “Shaking her fist at the crowd, she said: ‘Men of Wichita, this is the right hand of God and I am destined to wreck every saloon in your city.’”

Three days later, a group of women attacked Nation and her followers in the streets of Enterprise, Kansas.⁴³ As cries of “Kill her! Kill her!” were heard, “a woman, heavily veiled, rained blow after blow upon Mrs. Nation with a horsewhip. Male spectators offered no aid to either side, and quiet was restored only when the police interfered. Mrs. Nation was badly bruised.” The assailant was arrested for assault, though Nation said she would forgive her if she “begged her pardon.” But the suspect refused, whereupon “Mrs. Nation said she would send her to the penitentiary.” Two days later, in Topeka, Kansas, the wife of a saloon proprietor “rained blow after blow on [Nation’s] head with a broomstick” while the proprietor “stood by and encouraged the effort.”⁴⁴

Other groups in Kansas emulated Carrie Nation. One “completely wrecked the fixtures” in four saloons in Anthony, Kansas.⁴⁵ When the proprietor of one of the saloons “attempted to stop” the smashing, the husband of one of the women hit him in the head with a beer bottle, knocking him out, and causing his blood to mix “with liquor which flowed in streams over the floor.” A second group, heavily armed “saloon raiders,” shot and killed the wife of a bartender in Millwood, Kansas.⁴⁶ In 1907, Nation “called at the Executive offices of the White House” and was denied admission.”⁴⁷ Teddy Roosevelt was president.

The second archetype is killing, without benefit of trial, someone thought guilty of a crime. We warn readers that these stories are gruesome and upsetting. In Florida in 1901, a black man named Rochelle was apparently seen killing a “well known and respectable white woman.”48 Less than ten minutes after he had been put in a jail cell, a mob broke into the jail, took Rochelle, and dragged him to the scene of the crime on a riverbank. “Scream after scream broke from the wretch’s quivering lips, followed by groans and prayers for mercy.”

“By common consent, burning was to be the penalty. There were no ropes, no plans for lynching by hanging. The stake was the only suggestion as to the proper expiation of the crime.” Rochelle was chained to a stake on the spot where the victim had been murdered. “He pleaded for mercy, but in the great crowd around him silence was the only response.” Kerosene was poured on Rochelle until his clothes were “well saturated.” It was six o’clock and “[t]he crowd was growing, and business in the city had been practically suspended.”

When the match was applied the blaze quickly leaped skyward. The burning body could be seen only as a dark object in the circle of a roaring flame. Then the fire slackened and the writhing body came back in full view, but already the groans had ceased, and the only evidence of life was in the contortions of the muscles of the limbs. For fifteen minutes the body burned, and in a half hour from the application of the match only the charred bones were left as a reminder of the negro’s crime and his fate. The crowd dispersed as orderly as it had gathered and at 8:30 to-night the city is quiet.

The “city is quiet,” of course, because for that one night a perceived threat had been identified and removed from the community. The New York Times’ comment that “only the charred bones were left as a reminder of the negro’s crime and his fate” comes dangerously close to approving the mob violence. And if the Times was quietly approving, imagine the attitude of newspapers in other regions of the country.

The third archetype is killing someone where the evidence is not clear. We present three examples. One involved another burning at the stake. What makes this even more ghastly than Rochelle’s case is that Fred Alexander protested his innocence to the end.⁴⁹ The mob insisted that he confess. He replied, “I am innocent. … I am dying for what another man did. I see lots of my friends here; they know I did not do it.” Just before the mob took him to the scene of the murder, they gave him “another chance to confess.” He responded, “My God, men! … I have told you that I am innocent. I can’t tell you any more. I didn’t do it.”

Alexander “raised his shackled hands and began to speak. ‘You are going to kill me whatever I say,’ he said; ‘but you men are wrong. I want to tell you right now that you’ve got the wrong man. I did not do that, and some day you men here will run up against the man who did. I know it ain’t any use to me to say so, for you’re going to kill me; but I didn’t do it.’”

The mob’s response was to tie him to the stake. “Before the match was applied,” the father of the murdered girl asked Alexander if he was guilty. He insisted that “you have the wrong man” and “[y]ou’re burning an innocent man.” He asked for his mother but she was not in the crowd. While kerosene was poured all over Alexander and the wood at his feet, “he called to acquaintances in the crowd and said good-bye to them.” The murdered girl’s father lit the fire and, for the last time, “Alexander was asked to make a confession, but he replied that he had nothing to say.”

Men kept piling wood on until about 7 o’clock when the flames were allowed to die down. From 6 to 8 o’clock there was a continuous stream of people going to the scene of the burning. These were persons who had been unable to get away from their work in the afternoon and who were determined not to miss seeing the awful spectacle.

When the fire had cooled sufficiently, “there was a wild scramble to obtain relics. Bits of charred flesh, pieces of chain, scraps of wood—everything that could possibly serve as a souvenir—was seized.” This reaction is what one would expect of the victors in a religious crusade. It was as if the onlookers demanded souvenirs of the victory over deviance.

Two days later, the police chief was asked whether “any effort would be made to arrest the leaders of the mob which burned the negro Alexander at the stake.”50 He responded, “No I think not. I know of no movement to arrest any one. I do not approve of the burning of Alexander, but he should have been hanged.” A judge said, “The burning part is too bad; it hurts the community. It was intended to give an object lesson, but hanging would have been better.” When the mayor was asked if he would take any steps, he said, “It is a State case. I have nothing to do with it.” The story concludes with the casual remark that the victim denied that she had identified Alexander as the assailant. She said “that Alexander looked like the man, but she was not positive about it.”

The next two accounts are chilling because of the matter-of-fact nature of the reporting. The implication is that it is just not that big a deal when a mob decides to hang someone suspected of a crime even when he denies it. On March 1, 1901, a miner named Dewey Smith killed another miner during a quarrel.⁵¹ Smith claimed it was self-defense, but he never lived long enough to prove it. A mob took him from the hotel where he was being held by the sheriff to the mine where the shooting occurred. The entire account of the lynching in the Times follows: “A halt was called under a tree. One of the crowd offered a short prayer, a rope was quickly placed around the negro’s neck, and he was hauled up.”

Ike Fitzgerald, a black man, was charged with assaulting a nineteen-year-old white girl.52 On March 16, 1901, a jury was discharged after it could not reach a verdict. The rest of the Times story follows: “A different verdict had been expected, and a mob seized the prisoner before the Sheriff could hurry him from the courtroom and hanged him to a tree.” The Times lodged no criticism of the mob’s action.

We wish not to be misunderstood. We note the lack of objection to lawless conduct not because we condemn the writers. Quite the contrary. We take the lack of objection to be an artifact of the coarsened American character in the later part of the nineteenth century. One reader complained that we mistook objectivity for tacit acquiescence. But the Times of this era did not hesitate to criticize outrages in other straight news stories. For example, a 1902 story about the third degree said that “the law gives police officers no right whatever to practice such indignities upon prisoners who fall into their hands.”⁵³ The title of a 1908 story about organized crime was “Must Stop Outrages by the Black Hand.”⁵⁴ What about the outrages of lynching suspects without a trial and who might be innocent? The Times had nothing to say.

To be sure, as one reader pointed out, these news accounts do not prove that America was more violent in 1900 than it was in 1860. But the stories do demonstrate that America was angry and violent in 1900. Deviance was perceived everywhere—in saloons, in union activities, in the flood of immigrants, in freed blacks, and in Southern whites who refused to accept the outcome of the Civil War. England had no similar temperance war, no freed slaves, many fewer immigrants, and relatively little labor strife. Thus, it came to be that the third degree became an acceptable form of American, but not English, police interrogation.

We turn now to (mainly) news accounts of the rise and fall of the American third degree.

B. American Police Turn to the Third Degree

Our plan is to present the history of the third degree, including its likely causes and various permutations, and then explain how and why it declined. It was eventually recognized as its own form of deviance and was replaced by an emphasis on police professionalism. The model for police professionalism became an FBI that was radically expanded and molded by J. Edgar Hoover, appointed to run the bureau in 1924.⁵⁵

It is widely believed that the term “third degree” was borrowed from the Masons, for whom the “third degree” is the highest order with the “most grueling initiation rites” that are secret and can never be revealed.56 But the term also had a procedural definition. According to a 1901 New York Times story, the first degree of police interrogation was the examination by officers in the precinct house.⁵⁷ The second degree was a suspect’s “examination by a detective from headquarters, at the police court.” While the examination at the “police court” is not described, it was probably the examination before the magistrate. Those examinations normally took place at what was called the “Police Office” and were recorded by someone called a “police clerk.”⁵⁸ The New York Times article suggests that by 1901 detectives were conducting some or all of those examinations as the “second degree” police interrogation.

The third degree was “the big examination given to [the suspect] at Headquarters by the chief of the Detective Bureau and whatever subordinates he may employ in the operation when the case warrants it.” To be sure, the 1901 article makes clear that the questioning often took on a more intense character at the third degree stage, and it was this added intensity that eventually gave the term the meaning that we associate with it today. A similar procedural definition appears in the proceedings of the 17th Annual Meeting of the International Association of Chiefs of Police in 1910.⁵⁹

As Carolyn Ramsey demonstrated, the third degree was not limited to those officially charged with crime.⁶⁰ Material witnesses in homicide cases were often held in custody and sometimes put in the “sweat box” in an attempt to elicit evidence. In some cases, of course, a material witness became a defendant. As Ramsey put it, there was a “blurred line” during this period between witnesses and suspects.⁶¹ But in many cases, the witness was held for lengthy periods of time only to be released.

The third degree has been given quite a few scholarly treatments. One of our favorites, because it was written by one of us, is in Richard Leo’s recent book, Police Interrogation and American Justice.⁶² These treatments draw mostly on police biographies, accounts of police reporters, and the voluminous material collected through interviews and fieldwork by the Wickersham Commission in its investigation of law enforcement in the 1929-1931 period.⁶³

Instead of revisiting those sources, we relied largely on two sources that were only recently easy to search—case law that can be searched for words and searchable newspaper archives. We chose the Chicago Tribune and the New York Times, because they were published in the largest cities of the period, and both cities had high crime rates and problems with organized crime. We chose the Atlanta Constitution and the Los Angeles Times for regional balance. There is, of course, no doubt that cases and news accounts are only the tip of the iceberg, that they dramatically under-count the abuse and brutality that was happening inside police interrogation rooms. Despite the under-counting, news articles and cases are good tools to illustrate our theme that police responded with the third degree when they perceived that they were losing the “war” against crime, particularly in the large cities, and that police turned away from the third degree when the public began to perceive their conduct as deviant.

Searching the case law and newspaper archives allowed us to correct some errors in the conventional wisdom about the third degree. It did not, for example, take the Wickersham Commission’s 1931 report to alert Americans to the existence of the third degree. We found dozens of stories in newspaper archives in the period 1880-1930 on harsh police interrogation methods, often called “sweating” the prisoner. Anti-sweating bills were introduced in state legislatures as early as 1906 (Illinois) and enacted as early as 1912 (Kentucky).64 In 1910 and 1911, a committee of the United States Senate conducted an investigation into the “practice of administering what is known as the ‘third degree’ ordeal by [federal] officers of the law for purposes of extorting statements and confessions.”⁶⁵ The California Supreme Court in 1910 condemned a “close examination, characterized by … [defendants] as a … a relentless sweating process.”⁶⁶

At a meeting of the Women’s Political League in 1927, a Los Angeles policeman was asked if the third degree was a “habit” at the city jail. His reply: “Lady, if you get locked up there—it’s too bad.”⁶⁷ At least one national magazine recognized the problem by 1926, when the Saturday Evening Post described several third-degree techniques and surmised that not all the third-degree stories “can be utterly false and baseless.”⁶⁸ Thus, the Post concluded that the third degree had been used “many times” against suspects “who were still in the eyes of the law, innocent men.” The disgrace is that the “public does not concern itself with these unofficial invasions of constitutional rights.”

Given the public attention we uncovered, it might seem puzzling that the third degree persisted as long as it did, but the attention was not always negative. In 1901, the New York Times described the third degree as “mystical” and then explained that it consisted of police “clear[ing] up the mystery” by getting the suspect to “tell about it by hook or crook.”⁶⁹ Should the reader feel bad that suspects were tricked, the writer conveniently let the police off the moral hook by positing the guilt of the suspects. The 1926 Saturday Evening Post story stated that the “public admires the cleverness of the detective who secures an admission of guilt, regardless of the methods used.”⁷⁰ Even the use of force was regarded as “[r]aw work, but they had to do it.”

As long as the police were viewed as clever stalkers of guilty, dangerous criminals, the third degree could be seen as a necessary strategy to protect Americans from crime and deviance: “Raw work, but they had to do it.” And that is how it gained traction in police departments across America.

1. THE BLACK HAND

In section A, we sketched the general outline of the frayed American social order in the late nineteenth and early twentieth centuries. The murder rate tripled between 1904 and 1907, and then gradually escalated another 50% by 1919.71 It stayed at a rate of seven or eight times the 1904 rate until the advent of World War II. In this subsection, we focus on the particular challenge to police posed by the beginnings of organized crime. In the early days of the twentieth century, organized crime in parts of this country (and in Europe) was generally known as the Black Hand Society. Though we found reports of Black Hand activity in Ohio, Pennsylvania, West Virginia, Indiana, Illinois, Maryland, Toronto, New Orleans, and Atlanta,⁷² we will focus principally on its activity around New York. We do not claim that organized crime directly caused police to use the third degree. But the story of police fighting organized crime in the early 1900s illustrates how difficult the task of policing America’s large cities had become and how tempting it must have been to “cut corners” by using the third degree to get confessions when the police believed that the suspect was guilty.

One of the early Black Hand techniques was to extort money by sending letters threatening violence and then offering protection for money. A 1904 New York Times story told of an attack on a priest who had “been active in efforts to stamp out the ‘black hand’ letter writers and blackmailers.”⁷³ The attacker said, “I want $35 or your life.” The priest responded, “I haven’t $35. . . but I suppose you can have my life.” The priest “jumped” for the “highwayman” who struck the priest over the head and “knocked him unconscious.” The assailant continued to rain blows on the head of the unconscious man. “Two Italians then happened along and they chased the priest’s assailant into the woods, where he escaped.”

Also in 1904, a baker in Westchester County, New York, received a letter from the “President [of the] Black Hand Society” that demanded one hundred dollars within ten days or “we will do you to death.”⁷⁴ The letter promised that if he paid the money, “you will be protected all your life.” The news story reported that the same gang had obtained “by threats” more than $1,000 from Italians employed in the area. The same year, a man in New Rochelle, New York, was killed with a stiletto to his heart in a quarrel.⁷⁵ Police believed that the quarrel was started as an excuse to kill him because he had refused to pay a “tribute” to the Black Hand.

The last two cases demonstrate not only the threat posed by the Black Hand, but also the problem that police faced in solving these crimes. The police arrested the assailant in the knifing case, but the paper reported that “he refuse[d] to make any statement.” The letter to the baker closed with “[y]ou can tell all the policemen of the world we don’t fear them. They can’t catch us.” The baker knew the “young Italian [man]” who delivered the letter but would not divulge his identity because he “fears to have [him] arrested.”

Four articles of Black Hand bombs appeared in 1907. A grocery store in Williamsburg, Brooklyn, and a home in Philadelphia were bombed when the owners refused to pay the Black Hand the money that it demanded.76 A Black Hand agent put a bomb in a stove in an apartment in Mount Vernon, New York, and the explosion blew an arm off the owner’s mother and badly burned his wife and ten-year-old daughter.⁷⁷ He had refused to pay the $500 demanded in a letter. A powerful bomb set off three days before Christmas 1907 damaged every apartment in a five-story tenement on First Avenue in Manhattan.⁷⁸

The New York detective bureau had a special squad of Italian-speaking officers whose only responsibility was to investigate murders of Italians.⁷⁹ The head of that squad, Detective Sergeant Petrosino, told the New York Times that there were “at least 10,000 criminals associated more or less closely [as part of the Black Hand] for purposes of intimidation and violence.”⁸⁰ The Times asserted that there were more than 300 Black Hand murders nationwide during the “past few years,” and that every day “not less than four Black Hand cases are reported to the police [in New York City], and some days as many as thirty-five.”

The title of a 1908 article undoubtedly summed up the feelings of New Yorkers: “Must Stop Outrages by the Black Hand.”⁸¹ Sergeant Petrosino’s superiors told him that “he could have all the Italian detectives he thought necessary to catch the criminals who have committed the recent bomb outrages in the city and to suppress Black Hand manifestations.” There had been six Black Hand bombings of buildings in the prior three weeks.

Six months later, the New York Times published the story of Salvatore Spinella under the title “Police Have Failed to Stop Black Hand.”⁸² He went from a prosperous contractor-painter to a financially ruined man. In his own words:

The Black Hand come and demand $7,000.1 tell them to go to hell. They try to blow up my house. I go to the police and fight them as well as I can. They set off another bomb; two, three, four, five bombs. My business is ruined. … My family live in terror day and night. There is a policeman in front of my house, but what does he do?

Spinella provided the New York Times reporter “evidence to back his story. A file of twenty letters signed ‘Mano Nera’—the Black Hand—some of them smudged with blood lay on the table in front of him as he talked.” A part of one letter will stand for the rest:

Piece of Carrion: Don’t you think you’d better bring us the money? Pig of God, you think that we have forgotten you? No, assassin of God, dog of a God, we will forget you when we have destroyed you and your whole family and all your houses. … Now we will see [whether] you have the audacity to bring this letter to the police, and, carrion that you are, if you do that then we will fix you, pig of the Virgin Mary. … We swear to you upon the honor of our sworn society that you will shed tears of blood.

The pressure that police felt to respond to the Black Hand and other lawless elements must have been immense. Then there was the police frustration with the judicial process. A1907 story contained a firsthand account of how the Black Hand manipulated the court system. Sergeant Petrosino was off duty and beginning his vacation when he witnessed a nonfatal shooting on the streets of New York City.83 He chased the assailant and caught him. The man “handed over the [smoking] pistol, coolly saying that it had just been handed to him by another Italian.” Once in jail, “he exhibited plenty of money, and soon had a lawyer at work for him.” The case was adjourned several times awaiting the release of the badly injured victim, Rossi, from the hospital.

The defense lawyer then changed strategies from delay to demanding an examination by the magistrate, but by then Rossi had disappeared. It seems likely that the defense lawyer was aware of that fact. The magistrate threatened to dismiss charges unless Petrosino produced Rossi in court the next morning. Petrosino said it took twenty-four hours to find Rossi, whom he brought to court. Now the defense lawyer asked for a postponement, rather than an examination, and the magistrate agreed to postpone taking evidence in the case. Petrosino asked the magistrate to detain the victim “as I knew the witnesses in Black Hand cases usually disappeared.” The magistrate accepted Rossi’s promise to reappear. Petrosino told the judge that the suspect, Lardiero, “was a bad man who would simply go out and commit murder if allowed to get away with this case, as he had the reputation of having many scalps at his girdle.”

Petrosino told the reporter the rest of the story:

On the day set for the examination Rossi sailed for Italy, and when the case was called Lardiero was discharged from custody.

Two weeks ago he shot and killed Dombera, the banker. If the Magistrate had acted properly at the time Lardiero shot Rossi, Lardiero would now be in Sing Sing serving a ten years’ sentence and Dombera the banker would be alive.

For his zeal, dedication, and candor, Petrosino would pay with his life, murdered in Palermo, Sicily, in 1909 while on “a secret mission to that country in connection with the Black Hand Society.”⁸⁴ The next year, Senator Augusto Pier-antoni, professor of International Law at the University of Rome, visited New York City to attend a conference. He told the press that “Americans need not be alarmed by the stories of an organized Black Hand Society” emanating from Italy because it had “ceased to exist years ago. It has almost come to be forgotten by all save historians.”85 He scoffed at “the idea that Lieut. Guiseppi Petrosino was murdered at Palermo last year by order of any recognized leader of the Black Hand or Camorra.” The notion that the Black Hand had “ceased to exist” is, of course, belied by the fact that the Camorra to this day are one of the organized crime groups that operate both in Italy and the United States.⁸⁶

Petrosino’s murder never resulted in a trial, but the New York Times reported in January 1910 that the Secret Service had identified the killer.⁸⁷ He was, no surprise here, the head of the Black Hand Society in the United States. According to the news story, “a week before Petrosino sailed for Italy there was a meeting” of the Black Hand Society in New York City, and it “was decided that Petrosino had to be killed.” The head of the Black Hand was not identified in the story because the Secret Service could not persuade anyone to identify him.

In March 1910, Petrosino’s widow unveiled a monument in his honor during a ceremony attended by 200 policemen.⁸⁸ Lieutenant Richard Enright told the crowd that the murder of Petrosino was “but a shallow victory” for his killers because his death “has aroused two nations who are resolved that law and order shall prevail.” The “forces of light, law, and order” will prevail, he predicted over “the forces of darkness, anarchy, and riot.”

And it was not just the Black Hand that was troubling the New York City police. The report of the 1875 legislative committee investigating “the Increase of Crime in the City of New York” noted the “extreme demoralization that has crept all over the [New York City] police force.”⁸⁹ The committee concluded, “It is undoubtedly, to a great extent, a corrupt force.” But whatever demoralization and corruption existed in 1875, it was made worse by the Black Hand.

Here is the Black Hand situation as the New York City police perceived it in the first decade of the twentieth century. Most Black Hand crimes were not reported. When they were reported, witnesses usually disappeared, and Black Hand lawyers navigated their way effortlessly through the court system. How could police make progress against the Black Hand? By obtaining confessions, of course. And how could they best obtain them? Police frustration, meet the third degree.

2. THE BEGINNING OF THE AMERICAN THIRD DEGREE

A1901 New York Times article claims that the origin of the term “third degree” to describe police interrogation was in “police parlance” in the early 1860s.⁹⁰ The earliest reference we found to harsh interrogation, involving the “sweat box,” was a Reconstruction case from Georgia in 1868.⁹¹ According to an affidavit given by John Strapler, he was arrested, taken to an army base, and interrogated about a murder. When he kept insisting on his innocence, the government detective showed him what amounted to a coffin and said he would spend thirty days in that “sweatbox” if he did not tell what he knew. He continued to claim that he was innocent and was put in the box for thirty-three hours, at which point an army captain took him out of the box. The detective complained that the officer had taken him out too soon.

General George Meade, who had defeated Lee at Gettysburg and now commanded Union occupation forces in Georgia (as well as in Alabama and Florida), dismissed the sweatbox claim as false.92 In Meade’s account, Georgians spread a lie to arouse resentment against the occupying troops. Whether or not Strapler’s account was true—the Atlanta newspaper did seize on the story to prove Union mistreatment of innocent Southerners⁹³—the point is that the “sweat box” was recognized as a form of harsh police interrogation as early as 1868.

Several variations on a “sweat box” are described in the 1901 New York Times article that sketched the history and current practice of the third degree.⁹⁴ The earliest occurred when a suspect named Brunt was arrested in the early 1860s “purely on suspicion” that he “had stolen a lot of valuable bonds.” It was mid-August and “quite warm enough for any one, even in the cool shadows of the old jail.” According to the Times, the police captain had a stove placed in Brunt’s cell where a fire was kept white hot. After several days of temperatures over 100 degrees, the captain visited the cell and told Brunt that the cell “would be kept at about that degree until he decided to confess.”

“Brunt held out for three weeks, in which time he had lost about twenty-two pounds, largely as a result of perspiration. When he reached the stage of exhaustion where he felt that death was about to move in and become his cellmate, he weakened and told all.” The newspaper writer described the use of the stove as the “third degree.”

A New York Times article in 1902, “To Abolish the Third Degree,” began with statements by lawyers in opposition to the third degree.⁹⁵ Then it described variations of the third degree. A Chicago variation included placing biting red ants in the sweatbox and blowing red pepper into the box, causing the suspect to cough and choke. A Memphis variation was to cause scalding hot water to rise in the box as high as necessary to get a confession. A New York variation was a “dark cell” in the Tombs made of iron and stone. The article said that though the cell permitted enough air for breathing, “[a]fter fifteen minutes in this cell one experiences a sensation as of actual suffocation” and “even the boldest of the bad prisoners are as meek as lambs, bleating to get out.” Then there is the old standard, beating a suspect with a rubber hose. A seventeen-year-old suspect claimed in 1932 that two Los Angeles police officers took him to the City Hall garage and beat him with a rubber hose until he confessed.⁹⁶

An Arizona variation, which didn’t work out for the officers, involved hanging three suspects to force them to reveal the whereabouts of a missing woman.97 Two died and the third was at the point of death when the news story was published. The officers initially claimed that they had shot the three suspects, about as unlikely a cover story for strangulation as one can imagine. The officers told the truth when they were arrested and were charged with murder. A similar event occurred in Long Beach, California, in 1924 with the added twist that the suspects were black and two of the police officers wore Ku Klux Klan robes while stringing the suspects to a tree by their necks.⁹⁸

Less horrific examples included extended questioning, often without allowing the suspect to sleep.⁹⁹ An odd Los Angeles variation consisted of “rubbing the skin of the ears until it peels off, and in rubbing the scalp until the hair drops out.”¹⁰⁰ A simple, direct threat, attributed to the chief of police in San Diego, was to “blow your brains out if you don’t come clean.”¹⁰¹ That threat led to a lawsuit against the San Diego police department and offending officers.

3. AMERICAN AMBIVALENCE ABOUT THE THIRD DEGREE

Whether the third degree was accomplished by threats, the sweatbox, hanging the suspect, or merely coercive questioning, the American people were ambivalent about its use in the late nineteenth and early twentieth centuries. Many news stories were either noncommittal about the third degree or essentially endorsed it. Of the four newspapers in our database, only the Los Angeles Times did not run at least one or two stories explicitly approving the third degree. If crime rates were lower and crime less violent in Los Angeles than in our other subject cities, that could explain why the Los Angeles Times did not approve of the third degree. One marker of crime rates would be population and population density. In 1920, the population densities of the cities in our sample, per square mile, were New York City, 18,796; Chicago, 14,103; Atlanta, 7,657; and Los Angeles, 1,577.¹⁰² Moreover, our review of the news archives persuades us that the Black Hand Society was limited to the Northeast, Midwest, and South. Much violence attended the grand experiment of Prohibition, and news accounts suggest that it, too, was largely confined to the big cities.

The most remarkable story we found in favor of the third degree appeared in the New York Times in 1877.¹⁰³ It described a murder that could not be solved because the victim’s wife maintained that midnight burglars had killed him and beaten her. The story then condemned the

absurd laws which prevent the employment of the rack and the thumbscrew as aids for the discovering of crime. … Does any one suppose that, if Mrs. Gunser had been placed on the rack, she would have hesitated to admit her guilt after the first two or three turns of the windless—especially as her bruises would have rendered her exceptionally open to the influence of the machine?

The story regretted that the police could not have “slowly extracted” her fingernails “with pincers.” It mourned the passing of “the skilled engineers who formerly worked the rack and the thumb-screw and the red-hot pincers.” We suppose that this could be Swiftian satire because the writer said, “There is not an able detective living who will not promise to make Mrs. Gunser confess every crime in the calendar, provided he is furnished with a good, trustworthy rack and an assortment of other machines modeled upon those used with such excellent results in the Spanish Inquisition.” Surely no one could think that getting a confession to “every crime in the calendar” was a good outcome or that the Spanish Inquisition should be emulated. Whether satire or not, we find the story remarkable.

At a more mundane level, several stories from this period seemed to find the third degree necessary or at least understandable. In 1888, the Chicago Daily Tribune reported that a female murder suspect was put in the sweatbox “but she obstinately refused to talk,” implying that she had some undefined duty to respond to the third degree.104 An 1896 plot to assassinate the Chicago chief of police was uncovered by putting a suspect in the “sweat box.”¹⁰⁵ Also in 1896, a story entitled “Rounding Up the Thugs” reported that the Chicago chief of police “carried on a vigorous war … against the thugs and robbers who infest [ed] the city.”¹⁰⁶ One of the suspects, Red Sullivan, “had to undergo the pumping process in the sweat box in the forenoon and afternoon.”

A 1908 Chicago Daily Tribune story recounted the murder of two police officers and one holdup victim in a single week in a downtown Chicago neighborhood.¹⁰⁷ The police responded by “putting to rout the army of suspicious characters infesting Chicago.” Calling it a “crusade,” the news story reported without criticism the arrest of over one hundred men, over thirty of whom were “put through the ‘third degree’ to learn whether they knew anything of the numerous robberies, street holdups, and saloon ‘stick-ups’ which are almost daily occurrences” in two precincts in downtown Chicago.

In 1895, the New York Times reported that “a self-confessed insurance swindler” admitted killing ten victims and burying their bodies around his property.¹⁰⁸ Because police believed that the suspect’s wife “knows much more of the crimes of her husband than she cares to tell,” police put her “in the ‘sweat box’ for three hours.” The writer voiced no objection.

In 1905, a woman’s head was found in a satchel and the rest of her dismembered body was discovered in two suitcases in the Boston Harbor.¹⁰⁹ The New York Times reported approvingly that the New York police solved the “Boston suit case mystery” by putting the suspect “through the third degree,” after which “he broke down and said he would confess.” A 1907 New York Times story recounted a “remarkable confession” of how a gang used ether to render occupants unconscious while “robbing their houses at leisure.”110 The confession was obtained by putting the suspect “through the ‘third degree’ for a couple of hours.” In 1910, the Atlanta Constitution characterized as “shrewd detective work” the use of the third degree to force a confession from a black man.¹¹¹

But there were also critical articles. In 1890, the Chicago Daily Tribune carried a story titled, “The Police ‘Sweat-Box’ Exposed,” with a subtitle, “Denver Detectives Indicted for Brutal Attempts to Extort Confessions.”¹¹² In 1902, the Tribune wrote that the “administration of the ‘third degree,’ whether by kicking and beating a prisoner or by depriving him of sleep, is as illegal and as immoral as the ‘water cure.’”¹¹³ The “water cure” is not described, but it consisted of pouring gallons of water down the throat of a suspect, “until the body becomes an ‘object frightful to contemplate.’”¹¹⁴ “One or two such treatments and the prisoner either talks or dies.” The Chicago Daily Tribune article concluded that police who use illegal methods to obtain confessions are “law breakers.”¹¹⁵

In 1897, the New York Times was critical of the third degree used on Augusta Nack, a middle-class woman accused of helping her lover murder one of his enemies.¹¹⁶ The Times described the detective bureau’s standard operating procedure as one that “sets up a little inquisition of its own and attempts by threats and cajolery and all the other arts at its command to extort a confession of guilt” before bringing the prisoner to the magistrate. In Nack’s case, the magistrate “properly and indignantly rebuked the detectives for their procedure,” but the police nonetheless “asked that the culprit be remanded to their custody, in order that they might work the inquisition still further.”¹¹⁷ Calling the police inquisition “unfair,” the writer speculated that if Mrs. Nack had been “a nervous and high-strung person, she would have collapsed under the ordeal and said anything whatever that promised to bring it to an end.” Ironically, she would later confess in open court to assisting in the murder.¹¹⁸

If the third degree was inappropriate when directed at a middle-class woman, imagine the outrage when a New York City grammar school principal put two female students “through the ‘third degree’ to induce confession” to the theft of an umbrella¹¹⁹ In 1902, the principal was brought before a magistrate by the Society for the Prevention of Cruelty to Children. The magistrate “sharply rebuked” the principal, telling her that this “is not the way to educate girls.”

Two New York Times stories in 1902—drawn from conversations with lawyers and speeches by judges—were harshly critical of the third degree. The article quoting the judges was more explicit in the reasons for condemning the third degree. It spoke of “bogus confessions” given by “prisoners preferring to plead guilty to some crime they never committed to submitting to such tortures.” The article also discussed the impairment of the autonomy interests of suspects. Justice Henry A. Childs “denounced the ‘third degree’ and the isolation of accused persons as wholly unwarranted by law and as an invasion of the rights of personal liberty and said it was the duty of every lawyer to protest against the continuation of the system.” Referring to the third degree in a speech in 1902, Justice Truman C. White said, “Much has been done and much is being done to deprive men of personal liberty, and it ought not to be done.”120

A 1907 story about a murder in Queens, New York recounted a confession by a twenty-two year old.¹²¹ “It was not until after he had been put through the ‘third degree’ several times that Becker made a confession and then he started in to confess to any and every body who happened to ask him about the crime. He also confessed to imaginary crimes.” Then he turned to the officers: “Now I told what you wanted me to, are you going to let me go now?” Public opinion in the neighborhood where the murder took place viewed Becker “as a victim and not as the culprit,” and the grand jury refused to indict.¹²²

A 1909 letter to the New York Times said the third degree was “torture with the deliberate purpose of destroying the victim’s mental poise and forcing a ‘confession’ in accord with the suspicions of the inquisitors.”¹²³ The writer concluded “that the ‘confession’ so obtained is wholly unreliable. It proves nothing but the brutality of the method.” In 1910, a defendant on trial for murder “caused a sensation” in a New York courtroom when he testified that he was “mauled and beaten” by police until he “could hardly stand. … I was told I would escape with a light sentence if I confessed. I did so, as I was only too glad to end the torture.”¹²⁴

Also in 1910, a New York trial judge ruled that the defendant’s confession “had been wrung from him by threats, rough handling, starvation, and the assurance by the police that conviction would lead to only a few weeks’ imprisonment.”¹²⁵ The judge “believed the prisoner’s account of the torture inflicted upon him, and indignantly commented upon it. … ‘There is no language I could use which would be strong enough to express my abhorrence or condemnation of it.’” In his view, a “heightened respect for the administration of justice” would outweigh the loss of a few convictions.

A 1910 Los Angeles Times story quoted a trial judge that a statement “wrung from the accused” by the third degree was “not ‘free and voluntary’ as contemplated by the [California] statutes.”¹²⁶ The confession was “secured by methods that would have a better place in the days of the Spanish Inquisition than in the twentieth century.” A week later, the Los Angeles Times ran a story in which the Washington Supreme Court said that “the methods of the Spanish Inquisition have no place in modern life.”¹²⁷ The court also said that “an attempt to revive the dungeon, the bludgeon and the like, even in a mild form, ought to call forth the execration of the people.”

A 1917 Los Angeles Times story noted that a safe-cracking suspect had confessed but “because it appeared the police had used threats in securing [the confession], it was held that it could not be admitted into evidence.”128 The California Court of Appeals in 1925 noted that “the iniquity known as the third degree is stalking rampant throughout the land in flagrant violation of human rights which are supposed to be secured by American constitutions, both State and national.”¹²⁹ In 1928, the Los Angeles police chief issued a warning in the “Police Bulletin” that “[s]ecuring statements or confessions by the use of threat of force or violence is … forbidden.”¹³⁰ Officers found guilty of using unauthorized “force or violence upon a prisoner” would face “drastic action.”

A 1907 Chicago Tribune story reported an attempted suicide by a woman, ironically named Nightingale, because of a “grueling third degree or ‘sweating’ to which she had been subjected.”¹³¹ The police “questioned her severely in a vain hope of getting some tangible clew to the murder” of a police officer. “That she withstood the severe inquisition so long, in view of her frail constitution and nervous temperament, [her friends] declare to be a marvel, when robust men have been known to break down and become physical wrecks.”

Her friends also said that her case “should hasten the passage of the anti-sweating bill, which came before the last legislature and was tabled in the senate.” Not surprisingly, the Chicago police chief was “bitterly opposed” to the anti-sweating bill “on the grounds that it deprived the police of power to secure proof against criminals.” More negative publicity about the Chicago police attended the 1913 interrogation of a suspect named Haas who was “so badly beaten” that he was afraid to demand an investigation.¹³² That role fell to a real estate salesman named Kirk who was in the police station at the same time as Haas. He saw Haas “hustled” into a police lieutenant’s office. After a pause, Kirk “heard a few thuds, then a series of agonized screams.” The other officers in the station ignored the sounds. When the beatings continued for seven or eight minutes, Kirk turned to an officer and “demanded to know what was going on.”

The officer shook his head but then opened the door to the lieutenant’s office and said, “Take that man to a cell if you want to do any beating. … Get him out of here. This is no place for a trimming.” Kirk could see into the office. “Two big brutes … were standing over poor Haas, who was on his hands and knees. These men had even taken off their coats, and they looked like demons from the pit. … Haas had no chance. They were kicking him mercilessly and there he was looking up into their faces and pleading for mercy.”

In a story published five days later, Hass’s cell mate verified Kirk’s story. He said that when he first saw Hass, “He looked as if he had been struck by a cyclone or had tried to stop an automobile … blood was running down his face. … His clothing was almost all torn off … I never saw a man so scared in my life.”¹³³

The police treatment of Haas was outrageous even if he had been guilty. But the Tribune reported that he had been mistaken for someone else, someone whom he did not “resemble” even “remotely.”134 Kirk told the Tribune that “his blood boiled” at what he saw and that “[t]he sooner the police department is rid of such fellows the better off Chicago will be.” An alderman responded to this story by proposing “a thorough investigation of the affair be made … at the next meeting of the city council.”¹³⁵

In 1913, a lawsuit against the Chicago police chief and state’s attorney alleged the third degree in another mistaken identity case.¹³⁶ The police arrested a man named Mullen because they thought he was Eddie Waite. He was held for four days without charges filed or any record entered in the police records. During some of this time, members of the district attorney’s office subjected him to the third degree. When friends forced his release by a writ of habeas corpus, the district attorney made the first official entry in the police station book. “It was simply this, in red ink: ‘Error.’” Mullen’s suit asked for $50,000 in damages; we found no follow-up story.

In 1909, the Atlanta Constitution ran a story critical of the third degree, concluding: “As likely as not statements wrung forth by terror, fatigue, threats and duplicity will not come within hailing distance of the truth.”¹³⁷ A year later, the Constitution reported that a man who was put through the third degree by Chicago police hanged himself later in his cell, using his handkerchief.¹³⁸ The subhead read, Police Ordeal Proved Too Much for Alleged Murderer, an “ordeal” that helped “arouse[] much comment about police methods in this city.” In the same month, the Atlanta paper described the third degree as “blended about equally of terrorism, barbarity and torture.”¹³⁹

But the public continued to be ambivalent about the third degree. The Illinois anti-sweating legislation was tabled in 1906. While it passed both houses in 1917, it was still “strongly opposed” by the Chicago police chief and was vetoed by the governor.¹⁴⁰ In 1923, another anti-sweating bill died in the Illinois senate.¹⁴¹ In words eerily similar to those of presidential candidate Richard Nixon in 1968, one senator said, “There is too much sentiment for those accused of crime. … It is time we are paying attention to the law-abiding citizens.” To be sure, the 1922 Illinois Supreme Court made clear that confessions extorted by force were inadmissible,¹⁴² but the anti-sweating bill would have gone beyond outlawing use of force by police. It would have punished police by fine or up to thirty days in jail for seeking confessions by means of “any cruelty, trickery, deception, or by use of what is commonly known as the ‘sweat-box’ or ‘third degree’ or ‘water cure’ or by beating, striking, assaulting or threatening such person, or by depriving such person of food, drink, sleep or other necessities of life.”¹⁴³

A 1908 Ohio case demonstrates the ambivalence of the era. The suspect was “beaten over the head with a revolver by one officer, struck with the fist by another, knocked to the ground and in such fear that he befouled himself and cried out ‘Kill me, me no care,’” before being dragged in front of a “great crowd” where he gave incriminating answers.144 The court of appeals reversed the conviction on another ground but wondered aloud about the process that produced the statements:

While the officers of the law must be diligent in detecting crime and in bringing the guilty to justice and for this purpose the ‘third degree’ may sometimes be administered in the sweat box, so that clews may be obtained from which conviction may follow, should confessions or admissions obtained under such circumstances be considered voluntary and be used against the accused at his subsequent trial?

After suggesting that the statement might not be admissible, Judge Winch wrote that “we are in doubt upon this matter and a majority of the court is unable to say that reversible error was committed by admitting this evidence.”

What explains this ambivalence? It is the old story of balancing the need to keep the cities safe, against the concerns about false confessions and denial of suspect autonomy. The story of New York detective Thomas Byrnes makes this point. An article written by Edward Marshall about Byrnes appeared in the Atlanta Constitution in 1894.¹⁴⁵ Byrnes made his “greatest mark … when he relieved the money district of New York from fear of robbery.” The Wall Street district “constantly contains a greater value in securities, gold and silver coin than any other equal area in the world.” The article claims that in the ten years before Byrnes was assigned the district, “thefts amounting in all to $11,000,000 had occurred in this district.” That amount would be worth over $200 million today.¹⁴⁶ While that seems exaggerated, it must have been true that thieves saw Wall Street not only as a rich but also as an easy target.

Byrnes said he lay awake for five hours the night he was assigned to the money district before a solution dawned on him, and then “he rolled over to what he says was one of the most pleasant sleeps of his life.”¹⁴⁷ First, he ordered an admittedly illegal roundup of known criminals. About 500 men, women, and children were taken in squads into Byrnes’s office where he delivered a “brief but impressive lecture.” All those who had not already been photographed by police had their pictures taken before they were permitted to leave. Byrnes informed them that four plainclothes detectives would be on every corner in the district, prepared to arrest any of the group who ventured into the Wall Street district, however innocent their intentions might be.

According to the story, nearly one hundred of those who had been warned were later found in the Wall Street district. “So far as is known, without an exception, every one of them was locked up.” The author expressed doubt that the arrests were legal but noted that “the crooks” did not take Byrnes to court. Byrnes became a “very rich man” because of tips from Wall Street “stockholders and gold men” that made him “the only man in New York city who can speculate in stocks without the least possible risk of losing.”148

If driving robbers from the Wall Street district was Byrnes’s “greatest mark,” he also left a mark in the annals of the third degree. A thief locked up and awaiting trial said that he would rather “face the gates of hell itself than to meet Tom Byrnes’s eyes when he is angry or wanted to make me think he was angry.”¹⁴⁹ A pickpocket said no man should try to lie to Byrnes. “I tried it … and he smashed me across the teeth with a pair of handcuffs. Then I told the truth, you bet, for I didn’t know but he’d break me in two … the next time I lied to him.”

The story soothingly assures the reader that it is “not likely … that Byrnes often finds it necessary to use physical force, and it is certain that he never attempts it unless he is very sure of the kind of man he is dealing with.” Indeed, despite occasionally questioning the legality of Byrnes’s methods, Marshall’s tone is approving, almost adoring. Byrnes “stands pre-eminent among the detectives and police managers of the world.” There “is no one man now living who has built up such a reputation for himself among the law-abiding, or who has created such a wholesome fear among the criminal classes. … Scores of criminals avoid New York as they would avoid a pestilential city for no other reason than that he is in it.”

The Black Hand Society was but a microcosm in a much larger web of thieves and robbers that made America’s large cities fearful and the populace willing to tolerate harsh policing, as long as it was directed at the “criminal classes” and not middle-class women and young female students. Despite the occasionally critical press accounts, the prevailing opinion prior to the Wickersham Commission report might best be captured by the 1913 American Bar Association meeting. The committee on jurisprudence and law reform issued a report that found “in substance that the third degree as depicted in many newspapers does not exist.”¹⁵⁰ A minority report, endorsed by a single member of the committee, proposed a resolution charging that police in “many cites disregarded the rights of prisoners.” “The majority of the committee rejected this resolution on the ground that the present law regarding the admissibility of confessions was sufficient protection to defendants.”

Police denied use of the third degree even after publication of the 1931 Wickersham report entitled “Lawlessness in Law Enforcement.” Officials in Buffalo, Cleveland, Detroit, Chicago, Little Rock, Newark, Seattle, San Francisco, Richmond, the Bronx, Queens, Brooklyn, New York County, Trenton, and Camden denied the charges in the report.¹⁵¹ The director of public safety in Newark said, “Every man under my command knows I will not tolerate the ‘third degree.’”

Why did it take the Wickersham Commission to create legal accountability for violent police methods? One might have imagined a flurry of lawsuits like the ones filed by the Wilkes plaintiffs in England over a century earlier. We found only a handful of news reports about suits or criminal charges against police. To be sure, during this period, municipalities could not be sued for violating federal civil rights,152 but tort suits in state court could have been brought. We saw earlier the Chicago alderman’s condemnation of police third degree tactics in 1913 and the subsequent $50,000 lawsuit against the police chief and state’s attorney.¹⁵³ Oddly enough, another suit against the same defendants was filed three days earlier, seeking $25,000.¹⁵⁴ We could find no connection between the suits nor evidence of other lawsuits against the Chicago police and prosecutors. The ultimate outcome of the suits did not appear in the Chicago Daily Tribune.

But if lawsuits were not filed very often, there were real-world consequences for some who practiced the third degree. We saw that the Arizona officers who hanged three suspects were charged with murder.¹⁵⁵ In 1918, a Chicago lawyer was appointed by a magistrate to hear charges that a police officer and the secretary to the state’s attorney had abused a suspect during questioning.¹⁵⁶ The lawyer recommended that a grand jury investigate whether assault charges should be lodged against the two. The news account also suggested that the state bar association might “conduct an inquiry into the state’s attorney’s office” about the use of the third degree. We found no evidence of assault charges being brought or a bar association inquiry, but the grand jury did investigate the state attorney’s office and recommended that the office be censured.¹⁵⁷ Five months later, three assistant state attorneys and the secretary resigned. The four were described in the news account as aides who “have frequently been intrusted with the most important cases in the office.”¹⁵⁸

In 1920, a New York City police detective was convicted of assault because of his third degree interrogation of a truck driver.¹⁵⁹ But the charge was made only after a lawyer for the Citizen’s Union complained to the mayor and affidavits from a hospital were filed to show the extent of the injuries. Even then, the district attorney apparently dragged his feet on bringing the case to trial, and the detective was not dismissed from the force.¹⁶⁰

Warrants charging assault and battery were issued by a Chicago judge in 1921 based on allegations of the third degree used in a robbery case.¹⁶¹ In 1929, a New York City suspect was removed from police custody and turned over to the sheriff’s office.¹⁶² According to the news account, the suspect appeared in court for his arraignment “so badly beaten about the face and body that he could scarcely talk or move.” If it took that much third degree to merit removal of a suspect from police custody, then removal probably did not happen very often.

Yet the third degree largely disappeared from the American interrogation room, much like the Hawkins-Leach dictum lost its power to shape judicial outcomes in the late nineteenth century. The criticism of the third degree in Illinois led one prosecutor to claim that the “fourth degree”—“employing kindness instead of force”—was a “more efficacious” form of interrogation.163 An Arkansas judge in 1929 ordered an “electric chair” used to shock suspects into confessing “brought into court and after it had been examined, declared its use was an ‘uncivilized’ one,” adding “‘If these people are going to be mobbed before coming up here, there is no use of having a court.’”¹⁶⁴

The transparency and condemnation of the Wickersham Commission played a critical role in the decline of the third degree. As noted, police departments denied the charges but were stung nonetheless by the depictions of police as corrupt thugs. More important, the police chiefs and prosecutors feared a political backlash that might limit their ability to conduct interrogations.¹⁶⁵ One commentator even suggested taking the interrogation function away from the police and giving it to magistrates, as was the practice in England and the United States for centuries and is still the practice in Europe.¹⁶⁶ At the same time, science was advancing in ways that offered “magic” methods of police interrogation, the most obvious of which was the polygraph or so-called “lie detector.”

In 1932, the Chicago Daily Tribune quoted the man said to be the “inventor” of the lie detector that the “real merit of the machine lies in ‘getting at the truth’ without resorting to ‘third degree’ methods.”¹⁶⁷ He said that in eleven years of using the lie detector, only seven persons “lied without being detected.” In 1933, the Los Angeles Times ran a story with the headline “A Machine That Makes Criminals Confess!” that contained many examples of how the “lie detector” was instrumental not only in “proving guilt” but also in “establishing innocence.”¹⁶⁸ The story said that 75% of those who failed the two-stage polygraph interview confessed on the spot. In light of the Wickersham Commission report, which is not mentioned, it is telling that the reporter wrote: “The only torture involved in such a test is self-induced, through fear of being caught and that fear exists whether the man is being cross-examined in the usual way or on a blood-pressure apparatus.”

By 1940, the first police interrogation manual, written by police lieutenant W. R. Kidd from Berkeley, California, noted that lie detectors “are an often-useful aid to interrogation” and will “probably continue” to improve as machines and “the technique of operating them” improved.¹⁶⁹ The foreword to Kidd’s book was written by August Vollmer,¹⁷⁰ who was “perhaps the leading proponent of scientific policing” in the 1920s and 1930s.¹⁷¹ He urged police to “replace ‘trial and error’ methods of criminal investigation with ‘more efficient scientific techniques and crime laboratories’”¹⁷² Indeed, one book on police reform has the subtitle: The Era of August Vollmer, 1905–1932.¹⁷³

The poster child for the rise of police professionalism was J. Edgar Hoover’s Federal Bureau of Investigation. “Reform-oriented police such as Hoover and Vollmer sought to remake police interrogation in the image of scientific crime detection not only to raise the social status of police … but also to improve criminal investigation.”174 As for the polygraph, “police reformers hoped it would replace the third degree as a means of investigating suspects and eliciting confessions.”

What the police began to learn in the 1930s, if not the 1920s, was that while the third degree might be necessary in Black Hand cases, it was not necessary in ordinary run-of-the-mill cases. Police Lieutenant W. R. Kidd advised in 1940 that the third degree “never be used by police because” it “does not produce the truth,” it causes confessions to be suppressed, and “[p]ublic confidence in the police is shattered if knowledge of such methods is publicized.”¹⁷⁵ “Perhaps the greatest harm done by the third degree methods lies in the eventual harm to the department” in lost convictions because “[j]udges and juries are ready to believe the defense contention that third degree methods were used.”¹⁷⁶ In sum, “If you resort to torture, you admit your victim is the better man. When you ‘break’ a man by torture, he will hate you. If you break him by your intelligence, he will always fear and respect you.”¹⁷⁷

As befits our thesis, we believe that the lumpy but slowly improving American economy in the 1930s along with a falling crime rate¹⁷⁸ also contributed to the decline of the third degree. By 1940, the evils of fascism were making themselves evident, a trend that probably also reduced use of the third degree. Thus, the third degree largely disappears because it was finally viewed by the police as unnecessary and harmful to the police image.

To say that the third degree largely disappeared is not to say that echoes have not remained at least into the 1990s. Susan Bandes documented two systemic examples from the late twentieth century—the Rampart scandal in Los Angeles and the Area Two Violent Crimes Unit on Chicago’s South Side.¹⁷⁹ In 1999, Bandes chronicled specific types of torture in Chicago,¹⁸⁰ most of which were later proven by a team of special prosecutors who spent four years investigating the Area Two Unit. The team’s 292-page report, based on more than 700 interviews, concluded in 2006 that “scores of criminal suspects were routinely brutalized by police officers on the South Side of Chicago in the 1970’s and 1980’s.”¹⁸¹ The report identified three cases of torture that could be proved “beyond a reasonable doubt in court” along with “credible evidence of abuse in about half the 148 complaints they thoroughly investigated.” While “most were abused with milder weapons like the fist, the feet, the telephone books,” a few “had cattle prods placed against their genitals, guns shoved into their mouths or plastic typewriter covers held over their heads until they passed out,”—just as Bandes documented in 1999.

One of the victims of this police abuse said, “After the third torture session, I understood that these guys weren’t going to let me out of there alive if I didn’t say what they wanted.”¹⁸² He ultimately confessed to a crime that, he says, he did not commit. Because the statute of limitations had expired on the various aggravated assault crimes uncovered by the investigation, federal prosecutors charged Jon Burge, the then-commander of the Area Two Unit, with obstruction of justice and perjury arising from a civil suit.183 Prosecutors alleged that Burge participated in the torture that included mock executions. He was convicted and sentenced to four and one-half years.¹⁸⁴ A reporter who wrote about the sentence noted a 1929 report about crime, stating that “Chicago was an ethical sinkhole and the Police Department and courts were totally in on the fix.” So how much had changed?

Bandes concluded that the Chicago and Los Angeles scandals were evidence “of a much broader systemic dysfunction,” one that manifested a “deeply in grained resistance to systemic reform.”¹⁸⁵ We are not as pessimistic—heartened by the federal prosecution of Burge, the prosecution of Los Angeles officers connected to the Rampart scandal, and an independent report commissioned by the Los Angeles Police Commission. More fundamentally, we believe that the third degree is isolated because police have learned to get confessions by using gentlerand more effective methods of interrogation.

We turn now from the third degree to the Supreme Court doctrines that limited routine interrogation practices in twentieth-century America. Forty years after the Wickersham Commission, we arrive at the shining hill of Miranda. Or was it a mirage?