On June 1, the Supreme Court ruled in the case of Berghuis v. Thompkins. At the heart of the facts of that case was this bit of dialogue, in which a police officer elicited an incriminating statement after nearly three hours of questioning:
The interviewer asked Thompkins if he believed in God.
"Yes," Thompkins replied. The Supreme Court opinion notes that at this point Thompkins made eye contact with the interviewer and "his eyes welled up with tears."
The interviewer forged on: "Do you pray to God?"
"Yes," the target again said.
Finally, the interviewer moved in to close the deal: "Do you pray to God to forgive you for shooting that boy down?"
Again, the crying Thompkins said, "Yes," and his conviction was nearly assured.
The use of a defendant's faith to get a confession is not unusual. In California, for example, police got a confession from a woman after the detective told her, "There's something up above, bigger than both of us looking down saying, 'Celeste, you know that you shot that person in San Carlos and it's time to purge it all.'" Other cases have followed the same pattern.
Are we comfortable with prayer being used as a technique to get confessions? For many of us, there is something deeply troubling about this trend, which has been almost uniformly approved of by courts (as it was in Berghuis v. Thompkins). At the root of this discomfort, perhaps, is that that the police use of prayer for a law enforcement purpose seems to cut against the fundamental nature of prayer. In all faiths, prayer is a connection between God (or Gods) and the individual or religious community. It is singular, profound, and often beyond understanding. The reduction of prayer to a tool of the police reflects the harm that can be done to institutions of faith when they are taken over by the government.
Make no mistake: What the police are doing in these interrogations is nothing less than leading the target in prayer, usually by suggesting exactly what the content of the prayer should be.
In Thompkins the interviewer, having broken down the defenses of the target through hours of questioning, physical discomfort, isolation, and psychological tactics, took on the role of a spiritual leader. If you look at the questions and answers, they are of precisely the type and pattern that leader-led prayer might follow in a time of crisis, going from general belief to specific request. Imagine the two of them, heads bowed, in a pastor's office as the questions are asked:
Leader: "Do you believe in God?"
Follower (crying): "Yes."
Leader: "Do you pray to God?"
Leader: "Do you pray to God to forgive you for shooting that boy down?"
Is leading a detainee in prayer a proper way to get a confession?
I would argue that it is not. First, it seems well established that leading individuals in prayer is not a proper function of state actors whether it is in school or a police station. Like so many other odious combinations of church and state, the party most degraded is the institution of faith.
Second, it is likely to lead to unreliable and false confessions. This method leads the suspect to an area, faith, which is often infused with something other than logic and observable truths. Especially where people of different faiths are interacting, this type of conversation is prone to misunderstanding. Imagine that the last question had simply been "Do you pray to God for forgiveness?" The "yes" answer would have been just as useful to the state, given the context. But to a Christian, the only worthy answer to that question, even if one is completely innocent, would be "yes." Of course we pray for forgiveness.
The express ruling made by the Supreme Court majority in their opinion (written by Justice Kennedy) concluded that Thompkins' confession was not coerced. More specifically, the majority held that the fact that the interviewer's question "referred to Thompkins' religious beliefs also did not render Thompkins statement involuntary," because the Fifth Amendment is "not concerned with moral and psychological pressures to confess emanating from sources other than official coercion."
That, in the paragraph above, is the full extent of the Court's logic in concluding that this cynical and troubling use of faith against a criminal defendant is not sufficiently "coercive." While the lack of analysis of any type is troubling, the failure to grasp at any meaningful depth the meaning of prayer is worse.
Sadly, the issue will arise again. When the Supreme Court approves the use of an interrogation technique in criminal law, that creates a template for the police to use. We can now expect to see faith-related questioning of defendants as a matter of course (in the same way we will see the use of lengthy questioning of those who simply remain silent).
Worse, it is only the most vulnerable and unsophisticated who will be affected by this technique. More sophisticated defendants, especially recidivists, will know that they simply have to ask for an attorney or affirmatively assert their rights to cut off the questioning. The rich, of course, are more likely to have an attorney present.
In the end, the Thompkins case will lead to the coercive use of religion by the state (whether the Court cares to call it coercive or not) against the most vulnerable and poorest defendants. It is part of the tragedy of our time that our disinterest in faith issues allows the government to add to its power over individuals through nothing less than the bare manipulation of prayer and a poor man's weakness at the mention of God.
Follow Mark Osler on Twitter: www.twitter.com/oslerguy