Unfair (78 page)

And ten years ago:
Roper v. Simmons, 543 U.S. 551 (2005).

It disappeared because:
Peter T. Leeson, “Ordeals,”
Journal of Law and Economics
55 (August 2012): 709-11; Robert Bartlett,
Trial by Fire and Water: The Medieval Judicial Order
, (New York: Oxford University Press, 1986), 80. In the early years of the thirteenth century, Pope Innocent III launched a wide-reaching effort to eradicate ordeals—with the Fourth Lateran Council banning priests from continuing to participate in them—largely on the grounds that they were uncanonical and violated the Christian dictate not to tempt the Lord. Leeson, “Ordeals,” 709-11; Bartlett,
Trial by Fire and Water
, 80. With the religious backbone removed, the practice within secular judicial systems collapsed—in some places, like Denmark and England, following formal prohibitions and in other places, like France, as a matter of informal acceptance. Leeson, “Ordeals,” 709–11. By 1300, in most of Europe, the pools had dried up and the irons had cooled. Robert Palmer, “Trial by Ordeal,”
Michigan Law Review
87 (1989): 1547, 1554.

And what replaced the ordeal:
Langbein, “Torture and Plea Bargaining,” 3-4; Palmer, “Trial by Ordeal,” 1547, 1554. The trial by cold water, for instance, involved no significant physical harm, while even the person deemed innocent through judicial torture suffered immensely. Just as critically, there is reason to think that ordeals might very well have been more effective than torture at sorting the innocent from the guilty. One scholar has suggested that in a population that believed fervently in God's power to intervene in man's affairs, those who were guilty and those who were innocent would both have expected to be revealed as such during the
ordeal. Leeson, “Ordeals,” 691. So, the guilty were inclined to admit to their crimes to avoid suffering the ordeal
as well as the punishment
and, knowing that those who elected to undergo the ordeal would tend to be innocent, priests could manipulate the outcome toward exoneration by allowing a burning iron to cool or determining that a person had sunk to a sufficient distance in water. Leeson, “Ordeals,” 691. By contrast, with judicial torture, both the innocent and guilty parties faced the same calculation and optimal strategy: refuse to confess and hope that you were freed before the pain simply became too unbearable or, if the prospect of torture was worse than death, confess before proceedings began. As a result, the sorting effect of judicial torture was not between the upright citizen and the criminal, but between the extremely pain-tolerant and the extremely pain-sensitive. Langbein, “Torture and Plea Bargaining,” 7. And the seemingly robust checks built into the system to ensure that only parties who were very likely guilty were tortured and that confessions were true and voluntary turned out to be hopelessly ineffective. Langbein, “Torture and Plea Bargaining,” 7. Although a party had the ability to recant a confession as part of the required hearing after an admission of guilt under torture, if that happened, the person would be sent back to be examined under torture again. Langbein, “Torture and Plea Bargaining,” 7, 14. Furthermore, suspects undergoing interrogation often learned of facts about the crime inadvertently from those conducting the interrogation, jailers, and others—a problem that continues to plague our system today. Langbein, “Torture and Plea Bargaining,” 7.

For roughly the next half millennium:
Langbein, “Torture and Plea Bargaining,” 4, 12. In Continental Europe, judicial torture was routinely administered and widely accepted. Langbein, “Torture and Plea Bargaining,” 3.

Like us, they constructed:
Langbein, “Torture and Plea Bargaining,” 5. A threshold akin to “probable cause” had to exist before torture could be ordered and, as detailed in contemporary
treatises meant to guide judges, clerks, and other court actors, specific protocols had to be followed, such as ensuring that the questioning dealt with topics of which only the accused would know and barring suggestive questioning by the examining magistrate. Langbein, “Torture and Plea Bargaining,” 5, 7. Likewise, any confession under torture had to be affirmed subsequently without torture and investigators were charged with confirming factual details elicited through torture (e.g., officials were meant to verify the disclosed location of the murder weapon to ensure that the accused's statements were true). Langbein, “Torture and Plea Bargaining,” 5, 7. This was not brutality for brutality's sake: this seemed to be the just and ordered system, based in reason, that had evaded those who had relied on godly intervention to reveal innocence through supernatural miracles.

And what sets us apart:
There is, indeed, an odd parallel between our modern mechanism of plea bargaining and the tortured confessions of many centuries ago. Langbein “Torture and Plea Bargaining,” 12. Both seemingly short-circuit core legal principles that purportedly guide our criminal justice system, including transparency, shared adjudicatory responsibility and participation, freedom from coercion, and proof of guilt as a prerequisite to punishment. Langbein “Torture and Plea Bargaining,” 18. The modern prosecutor deciding to offer a plea agreement enjoys an incredible amount of discretion and scope of power, in some ways more akin to the medieval magistrate—as accuser, investigator, and sanctioner, all in one—than to the modern trial judge, limited largely in his presiding role and constrained by precedent and statutory guidelines. Langbein, “Torture and Plea Bargaining,” 18. And the contemporary prosecutor oversees a process that is unequivocally coercive: “admit your guilt or we will break your bones” is not so fundamentally different from “admit your guilt or we will seek the death penalty or nail you with life in prison without the possibility of parole.” Langbein, “Torture and
Plea Bargaining,” 12. Perhaps most critically, it is hard to see clear progress toward a world in which only people who have been proven guilty with objective evidence are subjected to punishment, when, in 90 to 95 percent of cases in the United States today, there is no trial at all and the sole trigger for punishment is—just as it was with judicial torture—an admission of guilt by the accused. Langbein, “Torture and Plea Bargaining,” 12–13.

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