Prohibition's Fourth Amendment Confessions Rule

Brown v. Mississippi is one of the most famous cases decided by the Supreme Court, involving the most infamous police interrogation in American history. Three black sharecroppers were sentenced to hang for murder based on confessions extracted by lengthy periods of whipping and hanging—treatment one of their tormenters described as “not too much for a Negro.” The Court held that the defendants’ coerced confession was inadmissible—a decision Michael Klarman has described as the Supreme Court’s efforts in early twentieth century criminal procedure to ensure that courts in the Deep South fairly evaluated a defendant’s guilt, and didn’t maintain one system for white defendants and a less-protective one for black defendants. There is an extraordinary intuitive appeal to Professor Klarman’s explanation. Brown, the Court’s case to review an interrogation by state officials, involved three potentially innocent African American men who were condemned to die based on evidence discovered through torture—torture inflicted by duly appointed law enforcement officers who had no shame in admitting their acts in open court. Something other than innocence and equal protection concerns, however, appear to animate Brown v. Mississippi. The lower court’s indifference to state sanctioned violence in Brown was an outlier. The Mississippi Supreme Court had demonstrated considerable concern about interrogation practices used against African Americans in the first quarter of the twentieth century, while tortured interrogations were neither uncommon nor limited to either the Deep South or to black suspects. Brown and the Supreme Court’s interrogation cases that followed were part of a new approach to criminal procedure: discouraging unacceptable police practices by denying the prosecution the opportunity to use evidence so derived. We typically think of the Supreme Court first requiring the states to adopt the exclusionary rule in the 1961 case of Mapp v. Ohio. But the idea that evidence must be excluded to deter misconduct gained traction in state cases involving illegal searches in the 1920s during Prohibition, and was first imposed on the states by Brown v. Mississippi in 1936. In this essay, I argue that the sympathies the Brown decision evoked against the villains of the Old Confederacy provided the Supreme Court an ideal vehicle to reshape confessions law to mirror developments in search and seizure law. Brown appears to have been driven by the single-minded deterrent concern that would come to define the Fourth Amendment’s exclusionary rule, even before the Court identified deterrence as a rationale for the exclusionary rule. Perhaps not coincidentally, it did so at a time when police were increasingly using “third degree” tactics against black suspects. Brown, though, does not appear to have been driven by a concern that appellate courts, North or South, could not be trusted to fairly apply the standards relating to the admissibility of confessions. Instead, the Supreme Court appears to have found the confessions rule, as it existed in the 1930s, to be insufficient to the task of preventing widespread torture in interrogation rooms, requiring the strong deterrent approach courts had taken to prevent unlawful physical searches.