Why (democratic) police custody matters

Like many others I have been following the Troy Davis case carefully and wondering how and why the death penalty continues to be used in a number of states in America, whilst flying in the face of justice. As Troy Davis’ case and others like it show, the stakes are high during the police investigation, but also in police custody more generally. Around the world, police custody contributes to suspects' and victims' access to justice (e.g. it affects whether a case gets to court and whether an appropriate conviction and sentence is secured). Police custody also contributes to social justice. As Peter Manning points out in his new book, Democratic Policing, the links between crime and social inequality mean that “policing is an aspect of formal social ordering and … it operates as an agency for the redistribution of life chances in a population" (2010: xii). Drawing on Rawls’ theory of ‘justice as fairness’ and the ‘difference principle’ he argues that democratic policing should strive to minimize harm, meaning that “any action planned, stated or enacted, should not increase inequalities" (2010: 65).

It is difficult to see how police custody in a large number of states in America minimizes harm and decreases inequalities. Firstly, requirements that suspects in police custody be informed of their right to silence and to counsel - brought about by the Miranda ruling in 1966 - have been undermined and diminished by subsequent rulings by the Supreme Court and other lower courts up and down the country (Weisselberg, 2008: 1599). Secondly, police training – at least in California which was the focus of Weisselberg’s research - encourages the police to view all suspects irrespective of whether they are a child, mentally ill or intellectually impaired as capable of understanding their rights and making a reasoned choice about exercising these rights. For instance one police training manual stated that:

“Being mentally slow, uneducated, drunk, injured and/or criminally unsophisticated does not mean we cannot get a valid waiver out of a person …” (cited in Weisselberg, 2008: 1574).

Yet there is a body of social science research which shows that the Miranda warning and waiver regime is beyond the comprehension of most suspects due to their low educational base and particularly for suspects who are children, mentally ill or intellectually impaired (Weisselberg, 2008: 1576-7).

Though Weisselberg’s research focused on California, there is a great deal of consonance between his research findings and my own, albeit that my research in the U.S. took place in a large city in a different jurisdiction and was based on conversations with and observation of police officers and suspects rather than an analysis of police training manuals. Whilst I still need more time to fully analyse the data from my research in the U.S., it was clear that police officers worked on the assumption of more or less treating everyone the same, including when giving them their Miranda warnings and seeking waivers. For example, when a child was in police custody they were kept in a cell which was in a different part of the holding area to adults. However, there were no attempts to help children better understand their Miranda rights or to alleviate their fears. I was told that parental permission was mostly sought by the police to talk to the child but that nine times out of ten parents were happy for the interrogation to proceed without them attending the police station at all. Similarly, I noted this in one of my field notes:

Two young black boys were arrested for shop-lifting $50 worth of stuff. They were detained from 3.40pm to 11.30pm when they were released into their parents care. This was longer than the 10 hours. One of these boys was 10 years old and the other was 15 years old. The younger boy could hardly sign his name (USAPO2).

Overall, police practices seemed to only pay lip service to the vulnerabilities and welfare needs of children.

So what does this have to do with Troy Davis? Whilst reading and thinking about these issues I happened across an article in The Guardian on Troy Davis and unfairness in the U.S. criminal justice system, which mentioned the related case of Holly Wood. He was recently executed in Alabama, in spite of him having an IQ of 59, which is substantially lower than the IQ of most. In his case, his execution went ahead in part because his lawyer failed to raise the issue of his intellectual impairment early enough in court proceedings. What struck me about this case was that surely the earliest point to recognise such intellectual impairment is in police custody? Intellectual impairment can affect whether a suspect understands their due process rights, whether they waive them and it can increase their suggestibility during police interrogations. This means that in police custody and not just at court and beyond, the metaphorical playing field needs to be in some way levelled for all vulnerable suspects.

Here, lessons can be learned from other countries. For example, in England children in police custody should be provided with access to an appropriate adult (AA) who may be their parent, guardian or carer from the local authority accommodation where they live or a social worker or some other responsible adult aged over 18 years who is not employed by the police (Police and Criminal Evidence Act Code of Practice C, 2008: 1.7). There is also statutory requirement for local Youth Offending Teams to provide an AA service for child suspects, which is normally comprised of trained volunteers. The idea for AAs originated from the ‘Confait Case’ which highlighted that vulnerable suspects can be pressured into falsely confessing to murder (Dixon et al., 1990). This led to AAs being given the role of advising suspects, observing whether interviews are conducted fairly and properly and facilitating communication between the suspect and the police. Admittedly the research evidence is mixed about whether AAs meet the needs of children (see for example, Skinns, 2010a; Pierpoint, 2008; Jacobson, 2008: 31; Pierpoint, 2006; Pierpoint, 2004; Quinn and Jackson, 2003: 47-49; Gudjonsson, Medford and Pearse, 2003). Nonetheless the requirement for children to have an AA serves as a reminder that children and other vulnerable suspects need additional support whilst in police custody and that equality is not about treating everyone the same, rather about achieving the same impact.

So what might we conclude from this about democratic police custody? Democratic police custody matters because by levelling-off the experiences of suspects it can prevent miscarriages of justice (which is of vital importance in places where the death penalty exists), as well as preventing social injustice. That said, in some states in the U.S., police custody is not as democratic as it might and should be. It adheres to some of the principles of democratic policing such as that the police be constrained and legalistically guided in their dealing with citizens and fair in procedure” (Manning, 2010: 65-66). After all, the law permits police officers to treat all suspects as having the same capacity to understand and decide about their due process rights. However, the consequences of this are undemocratic, according to Manning’s (2010: 65) definition, in that police custody fails to minimize harms and to decrease inequality for vulnerable suspects.

NB. These musings are the beginnings of a paper I am giving on ‘Diversity, difference and vulnerability in police custody: key issues from comparative research in four common-law countries’ at the American Society of Criminology Conference, 16-19 November 2011, Washington D.C.