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Monthly Archives: July 2014

Patterns and Practices

These days, I think a lot about police torture.

To be more precise, these days I am wrestling with problems of how to “prove” police torture occurred. And that’s why I recently read Kim D. Chanbonpin’s article “Truth Stories: Credibility Determinations at the Illinois Torture Inquiry and Relief Commission.”

The question at the heart of the problem I am struggling with is straightforward enough: How can one evaluate a claim of police torture when the only source of the claim is the alleged victim and when the police and prosecutors categorically deny that anything occurred?

As anyone who is familiar with Chicago civil rights litigation knows, claims of police torture have been a problem for the court system for nearly thirty years. In fact, they were a problem for Illinois courts long before Jon Burge began to work for the police department: In 1938, the jury and judge in a murder trial in Chicago were confronted with a claim by Robert Nixon that he falsely confessed to murder only because he had been repeatedly tortured over several days by Chicago police officers, who beat him, hung him by his arms from a wall as they interrogated him, and held him outside a window with the threat they would drop him if he did not confess to several murders. To counter Nixon’s claims, the State called over 40 police officers to the stand; they all testified that they had not abused Nixon or seen any other officer do so.

Invited by the State’s Attorney to consider who had the most reason to lie, the judge and jury concluded that Nixon, a young black man charged with a particularly heinous murder of a firefighter’s wife, would be most inclined to fabricate evidence. As a result, they sentenced him to death. The Illinois Supreme Court agreed for a slightly different reason. Noting that 23 police officers, “shown to be all of the officers in charge of defendant from the time of his arrest until after the statements and re-enactment were made,” had testified that they had not harmed Nixon and had not seen any other officer do so, the court concluded the state had effectively rebutted Nixon’s claims (371 Ill. 318, 324-325 (1939)).

As a practical matter, the Illinois Supreme Court was wrong on the very point it seemed to find crucial: The trial court did not hear testimony from everyone who had custody of Nixon for several of the periods in which he claimed he was tortured. But the sheer volume of the police testimony discouraged that sort of close reading that would make that gap obvious, and so Robert Nixon died on the electric chair in June 1939. He was not yet twenty-years old.

My efforts to tell the story of the Nixon case have forced me to confront the problems that claims of police torture pose for historians, as well. The usual methods of historical research, which would try to prove or disprove a contested claim through the painstaking reconstruction of events pieced together from other records and sources, are rarely viable alternatives for historians trying to unravel police practices. As Alfred W. McCoy noted in Policing America’s Empire (2009), his study of the U.S. surveillance state in the Philippines, “Armies usually preserve their papers for posterity while police and secret service tend to conceal or destroy their records.” (P. 12.) Destroy, or simply fail to keep records at all. In Robert Nixon’s case, it has been impossible to reconstruct who had custody of Nixon for the nineteen days he was in custody before he was brought before a judge for the simple reason that the lock-up keepers were not required to record who took prisoners out of the lock-up.

One alternative, discussed in detail in Chanbonpin’s article, is to look for a pattern and practice. Typically, this approach involves reviewing multiple cases involving claims of torture to try to see if victim complaints suggest patterns of conduct. If such a pattern emerges, the next step is to test an individual’s claim against that model to see how closely it matches. While a match, even a close one, does not prove the claim of torture is true (it would not, for example, trump other evidence that cast doubt on the credibility of the claim), it is a way to try to come closer to reconstructing what happened.

That was essentially the approach I planned to use in my study of Robert Nixon’s case. It is also the basic approach used by the Illinois Torture Inquiry and Relief Commission, created in 2010 to investigate claims of police torture against the Chicago Police Department. Chanbonpin’s article sketches the creation of that Commission as a result of the torture claims in Chicago, as well as its deliberations and conclusions since that date. Most crucially, from my perspective, the article raises questions about the problems of pattern and practice investigation. As Chanbonpin notes, “like other informal justice practices, the TIRC has become re-purposed. Instead of empowering its participants, the TIRC is serving the state’s interests in maintaining the status quo by rejecting police torture claims that do not conform to the dominant narrative.” (P. 5.)

Chanbonpin’s criticism is directed, to some degree, at the specific pattern and practice model relied on by the TRIC, a model that accepts the idea that police torture in Chicago was the product of a few bad apples working with Jon Burge and therefore excludes claims of torture that cannot be traced to particular stations or particular officers. But Chanbonpin’s discussion raises larger issues about the purpose of this sort of inquiry, and the role of restorative justice. While Chanbonpin’s appeal to the idea of counter-publics, and the idea that speaking truth to both power and the powerless may be more important than the adjudication of claims, is framed as an exploration of public accountability, the discussion raises interesting questions of the role of evidence, and its relation to inquiry, for legal historians.

Those are fundamental issues of what we are about when we explore a historical event. Are we trying to reveal what really happened, with the result that we fail (or should give up) if we cannot pin that down? Are we trying to establish that it was more likely than not that something happened, in order to reveal and raise questions about a practice that would otherwise remain hidden from the historical record? How, if we rely on patterns to try to make a point, do we keep our pattern from shaping or silencing our narrative?

Those are not just questions about legal history; they are also questions of historical ethics. In the end, I suspect I will still consider Robert Nixon’s claims of police torture in 1938 in the context of a larger pattern of torture claims made between 1919 and 1939. But because of this article, I will think about that process differently.

Cite as: Elizabeth Ruth Dale, Patterns and Practices, JOTWELL (July 30, 2014) (reviewing Kim D. Chanbonpin, Truth Stories: Credibility Determination at the Illinois Torture Inquiry and Relief Commission, 45 Loy. U. Chi. L.J. 1085 (2014)), https://legalhist.jotwell.com/patterns-and-practices/.

In Plain View

Gregory Ablavsky, The Savage Constitution, 63 Duke L.J. 999 (2014).

In this tightly argued and thoroughly engaging article, Gregory Ablavsky makes the case for a revisionist history of the U.S. Constitution that places Native American Indians at its center. While it isn’t hard to show that conventional constitutional histories largely neglect Indians, it isn’t easy to prove that such neglect is not benign. That is, it’s one thing to argue that standard accounts should include a discussion of Indians, but it’s another thing entirely to make a convincing case that core constitutional understandings would be fundamentally altered if historians fully and prominently integrated the history of relations with Indians into their narratives of the Constitution. Ablavsky aims for the latter, arguing that the history of the creation, drafting, and ratification of the Constitution should be rewritten with Indians in a leading role—and he does not miss the mark.

Ablavsky shows how concern over the problem of persistently hostile relations with Indians during the founding era informed James Madison’s and Alexander Hamilton’s competing Federalist arguments for a stronger central government. This isn’t a modest proposal that we pause for a moment to consider how events on the periphery might shed some light on constitutional debates at the center. Rather, Ablavsky tells us that there is nothing at all peripheral about the frontier when it comes to founding-era debates about constitutional design. The problem of Indian relations, he argues, was central not only for settlers, but for the likes of Madison and Hamilton, and for their fellow delegates and the ratifying public, as they debated the best form of government for the nation they were building. Contesting views on how to solve that problem substantially contributed to shaping the visions they articulated for a more perfect Union, in ways constitutional historians have yet to recognize.

On the Madisonian account, which Ablavsky labels the “paternalist” view, “[o]nly scrupulous adherence to treaties [with Indians] and their rigorous enforcement against states and squatters… could avoid costly wars that had resulted from national weakness under the Articles” of Confederation. (P. 1037.) Such adherence and enforcement could only be accomplished with a stronger central government. On the Hamiltonian or “militarist” approach, in turn, “[o]verwhelming force alone seemed the solution to the problems of Indian affairs” (P. 1038), yet the force in question was to be aimed not at states and squatters, but at tribes—the “natural enemies” of the United States, in Hamilton’s words (quoted at id.). According to Ablavsky, these competing understandings of the problem, and of what to do about it—paternalist on the one hand, militarist on the other—informed arguments at the convention not only concerning what became the Indian Commerce Clause, but also a range of related constitutional provisions. The Madisonian understanding comes into view in provisions directly involving treaties, including the Treaty Clause itself, the Supremacy Clause (with its inclusion of treaties), and the prohibition on states entering into “any Treaty, Alliance, or Confederation” (where the elimination of the words “with any King, Prince or State,” which had appeared in the analogous provisions in the Articles, meant that the language now “prohibited the sort of state treatymaking that had been so problematic under the Articles.” (P. 1043.) It is also apparent in the Property Clause (a.k.a. the Territory Clause), which gave Congress “explicit authority for the legally dubious Northwest Ordinance” (P. 1044), a document containing a provision on relations with Indians that “strongly reflected the Madisonian vision for the West” (P. 1045). Ultimately, however, it was the Hamiltonian or “militarist” approach to the problem of Indian relations that prevailed, according to Ablavsky, who makes the argument based not only on other textual evidence (for example, the removal of the qualifier “foreign” from the Guarantee Clause now “required federal military intercession if Indians attacked” (P. 1047), and the provisions concerning military affairs “remedied weaknesses that had plagued the United States in its earlier dealings with Natives” (P. 1050)), but also on structure (the states’ retention of considerable power within their borders had important and recognized implications with respect to Indian affairs) and on what one might call “spirit,” meaning of the expansionist sort (the federal state that emerged out of the founding moment was one committed to “empowering, not restraining, the inexorable westward tide” (P. 1050)).

Ablavsky’s overall argument for the centrality of Indian affairs to founding-era constitutional debates relies even more heavily on ratification: as he explains, “discussions of the Constitution’s likely effect on Indian affairs figured prominently in ratification, appearing in newspaper articles, pamphlets, letters, speeches, and even public toasts.” (P. 1051.) Ablavsky delivers on this claim with quotations from contemporary sources such as one alluding to the need for a central government with the power to confront “murdering savages.” (P. 1058.) But he also takes up the more challenging task of interpreting these debates in light of Indian relations even where the sources don’t contain explicit references to Indians. The discussion here focuses again primarily on the treaty power, with Ablavsky arguing persuasively that relations with Indians informed ratification debates on the nature and implications of the federal government’s power to make treaties at least as much as, if not more than, relations with Europeans (though he does take care at the same time to acknowledge that these two diplomatic fronts were substantially entangled).

In the closing pages of his article, Ablavsky turns to some of the broader legacies and implications of his argument for our understandings of constitutional history. The writing here is especially thoughtful and sharp, and the insights compelling. In a particularly elegant passage, he explains that federal financial and military support were crucial to Native dispossession, but that they were no more important than the militarist paradigm that cast settlers as victims and Natives as savages: “The specter of the ‘sword of the Republic’ undergirded all laws and treaties regulating Native interactions with the United States, often obviating actual bloodshed. Through this alchemy, ‘lawless’ violence was refined into the purer stuff of constitutional liberty and order.” (P. 1079.) Another passage makes the somewhat more concrete point that the article’s contributions are relevant to current debates about the domestic legislative effects of treaties, pointing out that Indian treaties, “perhaps the paradigmatic instance of treaties having domestic legislative effects,… were considered self-executing.” (P. 1081.)

In short, “The Savage Constitution” accomplishes the considerable feat of offering a revisionist interpretation of founding-era debates about the Constitution, with the potential to transform received understandings of some of the most important topics in our constitutional history. It makes for a truly rewarding read.

Cite as: Christina Duffy Ponsa, In Plain View, JOTWELL (July 4, 2014) (reviewing Gregory Ablavsky, The Savage Constitution, 63 Duke L.J. 999 (2014)), https://legalhist.jotwell.com/in-plain-view/.