Does Criminalizing Torture Deter Police Torture?

The forthcoming article “Does Criminalizing Torture Deter Police Torture?” by Mark Berlin is summarized by the author below. 

What works to reduce police abuses? In a new article, I find that when it comes to the use of torture by police officers, criminalizing an offense of “torture” in national law can help deter some incidences of abuse. 

To understand why, it’s helpful to first understand the nature of police torture. Public attention on the issue of torture usually focuses on cases, like China, Egypt, or CIA black sites, in which torture is used by governments to combat perceived challenges to their political power or threats to national security. But research suggests that much torture that occurs daily around the world is motivated instead by non-political reasons, targeting individuals who pose little political threat. Think of the police officer who tortures a confession out of an ordinary criminal suspect to close a case and thus advance their career, or the immigration official who abuses a detained migrant for their own personal satisfaction. Unlike politically motivated torture, which is often directed or at least tolerated by political leaders, non-politically motivated torture is made possible by the fact that some state agents, like police officers, enjoy wide discretion and autonomy in their daily work. Even if political leaders prefer that police don’t torture, they are limited in their ability to constantly monitor and control the behavior of individual officers. 

Therefore, policies and interventions to reduce opportunistic abuses need to directly target the decision-making calculus of front-line agents, like police officers. Criminal law can help do that in two main ways. First, criminalizing torture helps close legal loopholes that may otherwise make it difficult to prosecute cases of police torture. While most countries have laws that criminalize ordinary offenses like assault, such laws are often too limited in their definition or scope to cover the full range of conduct that may constitute torture – gaps that a dedicated and well-defined torture statute is meant to close. Second, criminalizing torture can alter how individual officers perceive the moral and social acceptability of torture. Criminalization sends a message that what may have been previously taken-for-granted as acceptable conduct, such as physical coercion in interrogations, is in fact a grave offense of international concern. Whether this alters officers’ own personal views or their beliefs about the willingness of others to condemn their behavior, criminalization can nonetheless increase the perceived stigma of torture and thus raise the anticipated costs for a would-be torturer.   

My findings are based on statistical analyses of an original dataset I collected on the existence and content of torture laws around the world. Importantly, my findings suggest that it’s not merely any form of criminalization that produces a deterrent effect. Only torture laws that meet the standard codified in the UN Convention against Torture (CAT) are associated with reductions in police torture. Why? The definition of torture from the CAT is designed to fill the types of legal gaps I mentioned above, gaps which may normally hinder prosecutions or reinforce permissive views about police abuse.  

Though criminalization is certainly not a cure-all for state abuses, my findings suggest that it can contribute to efforts to reduce human rights violations, especially when it comes to those abuses that tend to arise from the independent initiative of frontline agents.  

About Author: Mark S. Berlin is an Assistant Professor in the Department of Political Science at Marquette University. Their research “Does Criminalizing Torture Deter Police Torture?” is now available in Early View and will appear in a forthcoming issue of the American Journal of Political Science. 

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The American Journal of Political Science (AJPS) is the flagship journal of the Midwest Political Science Association and is published by Wiley.

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