11 Ohio States Journal of Criminal Law 231 (2013)
17 Pages Posted: 27 Nov 2013 Last revised: 24 Feb 2014
Date Written: 2013
Interrogation as a Thermometer of Public Fear (reviewing George C. Thomas III & Richard A. Leo, "Confessions Of Guilt: From Torture To Miranda And Beyond") offers a theory of dynamic equilibrium for individual constitutional rights protections. In their book, Thomas and Leo provide an excellent account of legal protection against coerced confessions that ebbs and flows over time rather than having steadily progressed toward the shining beacon of Miranda v. Arizona. The authors convincingly explain the expansion and contraction of interrogation law in terms of perceived threats to public safety and the public’s corresponding willingness to protect suspects in relatively secure versus dangerous times.
Colb offers a friendly amendment to the Thomas/Leo thesis, to help explain times of constitutional progress that coincide with heightened rather than reduced threats of private violence. Both law enforcement as an institution, on the one hand, and constitutional limits on law enforcement, on the other, have as a primary aim the protection of individuals’ ability to live safely while enjoying their property and liberty without unwarranted interference. Such enjoyment faces periodic threats from criminal predation as well as from governmental excess. When crime becomes a salient threat, much of the public looks to law enforcement for protection and undervalues individual freedom from official abuse, while relatively safe periods may trigger a preference for freedom from state intrusions.
Colb proposes, however, that even in times of threat from one of these sources (private or official), there will remain those people who continue to experience heightened sensitivity to threats from the other source. This variation among people in their respective reactions to threats can help explain how progressive criminal procedure decisions can sometimes emerge during a high-crime period, and it can also help account for why those who favor gun rights remain unmoved by school shootings to reconsider their positions.
By moving the focus from one kind of threat (from private violence or terrorism) to multiple threats sources (official as well as private and foreign misconduct) and by appreciating the enormously different responses that different sectors of the population may have to the same objective state of affairs, Colb argues that we can better appreciate the somewhat unpredictable nature of progress and decline, in the area of police interrogation and in individual constitutional rights protection more generally.
Suggested Citation: Suggested Citation
Colb, Sherry F., Interrogation as a Thermometer of Public Fear (2013). 11 Ohio States Journal of Criminal Law 231 (2013). Available at SSRN: https://ssrn.com/abstract=2360144