Torture and Truth

6 Pages Posted: 1 Aug 2017

See all articles by Morgan Cloud

Morgan Cloud

Emory University School of Law

Date Written: 1996


In the last full year of the Lochner era, the conservative "nine old men" on the Supreme Court decided Brown v. Mississippi, a decision so progressive that after more than seventy years it remains one of the Court's great opinions.

Brown is a great opinion because it broke new ground in constitutional law. Brown was the first case in which the Supreme Court reversed state court criminal convictions that rested upon confessions coerced from the defendants. Brown triggered the development of an entire area of constitutional law by establishing that the Due Process Clause of the Fourteenth Amendment limited the force state and local government officials could use to persuade suspects to confess, and that federal judges could enforce those limits. The Court would not incorporate the Fifth Amendment Privilege Against Self-Incrimination into the Fourteenth Amendment Due Process Clause and impose it upon the states for almost another thirty years, but Brown confirmed that due process protected individuals from government misconduct, and helped preserve this concept for future decades.

Brown is a great opinion because the Court confronted two profound moral issues and resolved them honorably. The investigators in Brown tortured three African-American murder suspects until they confessed, and the coerced confessions were the only evidence probative of their guilt introduced at the trial. Within a week of the murder, the three defendants were tortured, tried, convicted, and sentenced to death.

The Supreme Court reversed, holding that the convictions and sentences "were void for want of the essential elements of due process." Chief Justice Hughes wrote that "[i]t would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners."

Today this legal conclusion seems obvious, but in 1936 the Court had not yet begun the process of dismantling the system of racial segregation created and enforced by law. The opinion's repeated references to the race of the murder victim, the race of the defendants, and the race of their inquisitors do more than merely demonstrate a general awareness of the institutionalized racism existing in that time and place. They inform the reader that the Justices recognized that these men were physically abused before trial and mistreated by the state's legal system because of their race.

Ultimately, Brown is a great opinion because the Supreme Court rejected both racism and torture as legitimate elements in the processes of justice.

Keywords: Torture, Interrogation, Due Process, Racism, Supreme Court, Lochner Era, Federalism

Suggested Citation

Cloud, Morgan, Torture and Truth (1996). Texas Law Review, Vol. 74, p. 1211, 1996. Available at SSRN:

Morgan Cloud (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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