Beth A. Colgan

Tales from the Juvenile Confession Front

Children in the United States are regularly subjected to police interrogations. The modern police interrogation, except in rare circumstances, no longer involves the physical abuse, extreme isolation, and sleep deprivation commonly known as the “third degree” but instead involves more psychologically based interrogation techniques (see Leo, this volume). These techniques, which combine “minimization” techniques like feigning friendship, flattery and false sympathy, with “maximization” techniques like lying about or exaggerating the strength of the evidence, are designed with one purpose in mind: to get the suspect to confess guilt. The leading interrogation manual, Criminal Interrogations and Confessions (2001) by Inbau, Reid, Buckley, and Jayne instructs police officers to use these same techniques with children and adults.

Lessons from Ferguson on Individual Defense Representation as a Tool of Systemic Reform

ABSTRACT This Article investigates the relationship between the decisions by lawmakers to use municipal and criminal systems to generate revenue and the lack of access to individual defense representation by using the Ferguson, Missouri, municipal court as a case study. The Article chronicles the myriad constitutional rights that were violated on a systemic basis in Fergusons municipal court and how those violations made the citys reliance on the court for revenue generation possible. The Article also documents how the introduction of individual defense representation, even on a piecemeal basis, played a role in altering Fergusons system of governance. Using this case study, the Article examines the way litigating individual cases and seeking the enforcement of constitutional rights can alter the cost-benefit of using courts to generate funds by both increasing system expenses and decreasing revenues. Further, individual case litigation alters the cost-benefit of using courts as revenue generators by forcing officials to take a public position on municipal court practices, thereby informing and changing the public debate on crime policy. The Article posits that while individual defense representation will have the greatest systemic effects in systems like Fergusons, where there is a significant dependence on the courts for revenue, a pattern of unconstitutional activity, or the targeting of economically vulnerable communities, individual defense representation should be broadly understood as a tool for systemic reform. The Article also raises theoretical and normative implications from the Ferguson experience regarding whether constitutional criminal procedural rules or local government controls over procedure serve as a better check against systemic abuses, and regarding the repercussions of a politically and doctrinally myopic focus on access to counsel as a solely constitutional, as opposed to political, matter. TABLE OF CONTENTS INTRODUCTION I. FERGUSON A. Fergusons Municipal Court System Before the Shooting of Michael Brown 1. System Design 2. Adjudication 3. Sentencing 4. Collections B. The Role of Individual Defense Counsel in System Reform in the Aftermath of the Shooting of Michael Brown II. THE ROLE OF INDIVIDUAL DEFENSE REPRESENTATION IN CRIMINAL JUSTICE REFORM A. How Individual Representation Can Aid in Changing the Cost-Benefit of Crime Policy B. How Individual Representation Can Aid in Creating a Public Reckoning 1. Forcing the Government to Take a Public Stance 2. Identifying Patterns of Abuse C. How the Limitations of Using Ferguson as a Model Support Systemic Access to Counsel III. THEORETICAL AND NORMATIVE IMPLICATIONS A. Implications Regarding the Role of Constitutional Procedural Rights and Local Governance in Criminal Justice Reform B. Implications for Understanding Access to Counsel as Both Political and Constitutional 1. Understanding Access to Counsel as Political 2. Accounting for the Political Effect of Individual Defense Representation Within the Right to Counsel Doctrine CONCLUSION INTRODUCTION When tensions in Ferguson, Missouri, exploded in the late summer of 2014 following the shooting of Michael Brown by Ferguson police officer Darren Wilson, the ArchCity Defenders sought to provide some context to the anger and anguish exhibited by the citys residents. (1) The ArchCity Defenders, a nonprofit legal aid organization based in St. Louis, Missouri, which at the time focused on housing and homelessness issues, had been engaged in a courtwatching project. The project arose out of concerns that many of its clients had arrest warrants--issued as a result of their inability to pay fines and fees ordered by municipal courts around St. Louis County--that prevented them from accessing housing, treatment, and employment services. …