Constitutional guarantees relevant to torture of suspects

[Judith Baer]

In teaching jurisprudence to undergraduates, I use an article by John
Langbein, "Torture and Plea Bargaining," which appeared in Feinber & Gross,
ed., PHILOSOPHY OF LAW, 4/e.  (You political scientists may be familiar with
it.)  Langbein argues that torture was used in 13th-18th century Europe
because the standard of proof in criminal cases was too high.  Authorities
were supposed to use torture only when they had "half proof" of guilt and
only to elicit information "that no innocent person can know." (Langbein
does not suggest that these limits were typically observed.)  The problem,
of course, was that torture doesn't test a suspect's innocence, but his
ability to withstand pain. And that hasn't changed.

Judy Baer