I’ve written on many occasions about what I call universal criminality, the crowning achievement of the modern police state, under which there are so many vague, overbroad and counterintuitive laws that every single person is in violation of at least a few of them at all times. Nearly any encounter with the police can be turned into “assault on a police officer” or “resisting arrest”, almost any business can be twisted into “racketeering”, virtually any financial transaction can be redefined as “money laundering” and even normal friendships or business interactions can be tortured into “conspiracy”. But while charges like these can be used to harass, bankrupt and imprison the target, possibly for many years, they often lack the firepower necessary to totally destroy his life forever; after his release from prison he might still be able to find work, have a normal social life and rebuild his shattered fortunes into some semblance of a comfortable existence. Worst of all (from the prosecutorial viewpoint), the public might even side with the victim, turning him into a martyr both during and after his state-sanctioned torture and caging. But there is one weapon in the state’s arsenal which, used properly, will utterly destroy a person’s life. At the end of the process he will have no money, no friends and no home; he will be completely unemployable and condemned to everlasting surveillance, shunned by society and unable even to avail himself of even paid companionship without triggering still more awful consequences. If the prosecutor is really lucky, his victim may even be murdered by the police or other thugs or take his own life. And all it takes to detonate this thermonuclear weapon of modern law is the sending of a single email.
Maggie McNeill, “Instant Criminal”, The Honest Courtesan, 2014-09-19.
September 28, 2015
September 25, 2015
Prosecutors, and regulators more generally, like vague standards that are impossible to enforce consistently. It gives them a great deal of discretion in whom they target and how. It is a threat that can be wielded to force pleas to lesser crimes or other “voluntary” actions that obviate the need for a messy trial they might lose.
Megan McArdle, “California Accidentally Legalizes Campus Sex”, Bloomberg View, 2014-09-23.
September 3, 2015
In Time, Shikha Dalmia explains why India may not want to cuddle up too closely to the idea of getting reparations from the UK:
Indian politician and celebrated novelist Shashi Tharoor caused a mini-sensation late last month when he went before the Oxford Union, a debating society in England’s prestigious eponymous university, and argued that Britain needed to give India reparations for “depredations” caused by two centuries of colonial rule. It was a virtuoso performance — almost pitch perfect in substance and delivery — that handily won him the debate in England and made him a national hero at home.
But the most eloquent point that emerged in the debate is one he didn’t make: While Brits are grappling with their sordid past by, say, holding such debates, Indians are busy burying theirs in a cheap feel-goodism.
Colonialism, without a doubt, is an awful chapter in human history. And Tharoor did a brilliant job of debunking the standard argument of Raj apologists that British occupation did more good than harm because it gave India democracy and the rule of law. (This is akin to American whites who argued after the Civil War that blacks had nothing to complain about because — as the Chicago Tribune editorialized — in exchange for slavery, they were “taught Christian civilization and to speak the noble English language instead of some African gibberish.”)
Reparations make sense when it is still possible to identify the individual victims of political or social violence. But if paying collective reparations for collective guilt is appropriate, then how about India “atoning” for thousands of years of its caste system? This system has perpetrated “depredations” arguably worse than those of colonialism or apartheid against India’s dalits — or untouchables — and other lower castes. And despite what Hindu denialists claim, this system remains an endemic part of everyday life in many parts of India. Indeed, much like the Jim Crow south, local village councils even today severely punish inter-caste mingling and marriage, even issuing death sentences against young men and women who dare marry outside their caste.
None of this is meant to single out India. Alexis de Tocqueville, the great French philosopher, who visited America in the early 19th Century, expressed astonishment at how Americans could blithely both claim to love liberty and defend slavery without any sense of contradiction. Every civilization has its stock of virtues and vices, ideals and transgressions. Moral progress requires each to constantly parse its history and present to measure how far it has come and how far it must go to bridge the gap between its principles and practices.
August 20, 2015
July 11, 2015
Published on 7 Jul 2015
You may have already heard about how the government tried to stifle Reason‘s free speech.
Federal prosecutors based in New York sent a grand jury subpoena and letter to Reason, commanding editors to hand over the records of six commenters who wrote hyperbolic statements about federal judge Katherine Forrest below a blog post at Reason.com. Forrest sentenced Ross Ulbricht to life in prison without parole for creating the Silk Road website.
Then came a gag order from U.S. District Court, meaning Reason could not write or speak publicly about the subpoena or gag order — even to acknowledge either existed. But between the subpoena being issued and the gag order being issued, one legal blogger managed to figure out what was going on.
“I got an email and I looked at it and I thought wow, this is a federal grand jury subpoena to Reason magazine,” says Ken White, a writer at the legal blog Popehat who is himself a former federal prosecutor. White sat down with Reason TV to talk about how he broke the story and what he thinks it means for press freedom and open expression online.
“What’s upsetting is that there is no indication whatsoever either that the prosecutor or the judge gave any consideration to the fact that this was being aimed at a reporting organization about a First Amendment issue,” says White. What’s more, White stresses that the comments named in the subpoena are commonplace for the internet and especially at Reason.com, a site, he notes, “whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery.”
The scrutinized comments ranged from taunts such as “I hope there is a special place in hell reserved for that horrible woman” to “Its (sic) judges like these that should be taken out back and shot,” but none, say White, come close to qualifying as “true” threats or anything other idle chatter. It remains unclear why the U.S. Attorney’s Office was interested in such internet fodder, how often these sorts of subpoenas get sent out to news organizations, and how often they comply. Nevertheless, White points out that federal prosecutors hold an enormous amount of power over human lives and rarely reflect on how they use — and abuse — their position.
“A fish doesn’t know that it’s in water,” says White. “A federal prosecutor doesn’t know that they are swimming in power. They could do it, so they did.”
Produced by Paul Detrick. Shot by Zach Weissmueller and Justin Monticello.
July 1, 2015
I was not aware that the title “Grand Jury” doesn’t necessarily mean that there’s a jury empanelled to decide “grand” issues of law under US practice:
Over at the Daily Beast, Nick Gillespie attempts to bring religiosity to the fuzzy-wuzzies by describing what it was like to be hit with a ridiculous grand jury subpoena and unprincipled gag order. In response, several Daily Beast commenters trot out an argument I see now and then: “well, citizens on the grand jury thought that there were grounds to issue a subpoena.”
In fact, hell no, or if you prefer, bless your heart, no.
Let’s talk about how federal grand jury subpoenas actually work. These days the U.S. Attorney’s Office prints them from fillable pdfs. Given that we were still typing them when I left the USAO in 2000, they probably achieved this technical benchmark in 2012 or so. Assistant United States Attorneys — that is, snot-nosed punks like I was at twenty-six — issue a grand jury subpoena by filling it out, or more likely, asking their secretary to fill it out. Nominally, the subpoena is issued on behalf of the grand jury. But it is not by any stretch of the imagination, issued by the grand jury. The AUSA need not — and never does, in my experience — ask the grand jury for permission. When the target of the subpoena produces documents, most often the Assistant U.S. Attorney lets the case agent — some Special Agent of the FBI or DEA or whatever — hold on to them.
So is the grand jury involved at all? Well, sort of. If and when the federal prosecutor seeks an indictment relying in part on documents produced in response to a grand jury subpoena, they’ll summarize the results of the subpoena to the grand jury. But that could be years after the fact. Prior to that, the acknowledged “best practice” is for the AUSA to appear before the grand jury, tell the grand jurors that a subpoena has been issued on their behalf, briefly outline the nature of the investigation, and ask their consent for the case agent to maintain custody of the documents produced — which, because they have been produced “to the grand jury,” are governed by secrecy requirements.
Does that always happen? No. Even when it does happen, it’s rarely a significant check on the use or abuse of grand jury subpoenas. First, when I was an AUSA, I never once had a grand juror ask about why I was issuing such a subpoena or exactly what I got back. I don’t know that any of them ever looked up from their newspapers. The common practice is to make a report so perfunctory that the grand jurors have no context from which to determine whether a subpoena is appropriate — and you’d only be reporting the subpoena after the fact. Second, there’s often no continuity of grand jurors. In a small district you might have only one grand jury that meets once a week, and those grand jurors could, in theory, write things down in their notebooks and keep track of them over time. But in many districts there are many federal grand juries. In Los Angeles, for instance, there was a different one meeting every day of the week. AUSAs don’t necessarily report subpoenas from the same investigation to the same grand jury over time. And federal grand juries turn over after a year and a half (unless extended), which means that the grand jurors hearing you report a subpoena this year won’t necessarily be the same ones hearing you report the next subpoena in the investigation next year.
June 12, 2015
Every now and again, it’s easy to believe that we’ve somehow slipped down a hole in time to a less free, more authoritarian time. This is the kind of thing you could easily imagine happening in Fascist Italy or Franco’s Spain rather than in the United States in 2015:
The United States Department of Justice is using federal grand jury subpoenas to identify anonymous commenters engaged in typical internet bluster and hyperbole in connection with the Silk Road prosecution. DOJ is targeting Reason.com, a leading libertarian website whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery.
Why is the government using its vast power to identify these obnoxious asshats, and not the other tens of thousands who plague the internet?
Because these twerps mouthed off about a judge.
Last week, a source provided me with a federal grand jury subpoena. The subpoena, issued by the U.S. Attorney’s Office for the Southern District of New York, is directed to Reason.com in Washington, D.C.. The subpoena commands Reason to provide the grand jury “any and all identifying information” Reason has about participants in what the subpoena calls a “chat.”
Regrettably, The Government Can Probably Abuse the Grand Jury Subpoena Power This Way
The grand jury’s investigative power — exercised nominally on its behalf by the U.S. Attorney’s office — is nearly unchecked. It’s not like a stop-and-frisk or search; the government doesn’t need reasonable suspicion or probable case to use grand jury subpoenas to seek information. In general, one can only challenge grand jury subpoenas when they are irrationally burdensome (like demanding that Apple produce every document about iPhones in its possession) or for an improper purpose (like using the grand jury to improve trial evidence after an indictment has already been returned) or, very rarely, when privacy or constitutional issues are in play.
Reason.com — or the anonymous commenters — could file an action in federal court seeking to quash this subpoena. We know how that would likely come out, because someone recently did it. During the 2012 election cycle a juvenile but prolific Twitter personality named “Mr. X” tweeted “I want to fuck Michelle Bachman in the ass with a Vietnam era machete.” The government subpoenaed Twitter for Mr. X’s identifying information; Mr. X filed a motion to quash the subpoena. The United States District Court for the District of Columbia rejected the motion.
May 26, 2015
The book is being published in time to mark the tenth anniversary of the Supreme Court’s dreadful Kelo decision:
My new book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain is now in print. It is the first book about the Kelo decision and the massive political backlash it generated, written by a legal scholar. The Grasping Hand is coming out just in time for the tenth anniversary of Kelo on June 23.
Here is a summary from the University of Chicago Press website (the book is also co-published by the Cato Institute):
In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for “public use,” the Court ruled that the transfer of condemned land to private parties for “economic development” is permitted by the Constitution – even if the government cannot prove that the expected development will ever actually happen. The Court’s decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market.
In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and “blight” condemnations are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them. Moreover, the city’s poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats.
The Supreme Court’s unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed.
Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain, and an evaluation of options for reform.
April 24, 2015
Gavin McInnes on the polygraph machines and their questionable accuracy:
I met Doug Williams in August while developing a pilot for a TV show about myth busting. He’s the most vocal critic of polygraph machines in the world and authored the book From Cop to Crusader: My Fight Against the Dangerous Myth of “Lie Detection.” Williams’ history in law enforcement brought him from the Oklahoma City Police Department to the White House where he served under Johnson and Nixon as a communications advisor (Johnson was cool, Nixon was a dick). He has issued thousands of polygraph tests over the years and even helped make the test part of federal law.
Doug started to realize the whole thing was a scam in the late 1970s and since then has devoted his entire life to giving everyone else the same epiphany. Unfortunately, the government doesn’t see it the same way and on May 12th, his trial will begin for the crime of “train[ing]… customers how to conceal misconduct and other disqualifying information.” He was busted by two undercover federal agents who took his course and decided the class had gone from simply “debunking” to “aiding and abetting.” The Feds are trying to say that Williams is hampering investigations, but all he’s doing is proving these machines don’t work by presenting evidence. 60 Minutes did the same thing in a 1986 episode where three out of three experts failed their own test. People are losing their jobs and going to prison based on the findings of a machine that appears to be totally unreliable. The only thing he’s hampering here is the abuse of power. The irony is, if it’s possible to beat a polygraph, it clearly isn’t a reliable piece of equipment. If it’s not possible to beat, his courses are irrelevant. You can teach someone to trick a police radar all you want. It’s still going to clock you if you’re going over the speed limit. This seems like common sense yet the state has won cases like this before. In 2013, an electrician named Chad Dixon was sentenced to 8 months in jail for helping people beat the machine.
March 27, 2015
Megan McArdle is being a downer about the idea that if we just stop throwing people into jail for non-violent drug possession, it’ll make a big dent in the prison population:
De-incarceration is clearly an idea whose time has come. But doing it means thinking clearly about de-incarceration. And as I discovered when I went to a recent event on the topic, most of us in the media don’t.
We’re hampered by the rampant perception that all we need is to wise up and stop incarcerating people for simply possessing drugs, something many of us feel shouldn’t be a crime at all and certainly shouldn’t merit prison time. At the event I attended, someone who has actually studied the matter closely pointed out what experts know and most journalists apparently don’t: Relatively few people are in prison for simple possession or for other minor crimes. The shock in the room was palpable.
I wasn’t shocked, but not because I am somehow immune to this delusion. Rather, I had it stripped from me a few years back, when I went to Hawaii to report on its innovative probation program, Hawaii’s Opportunity Probation with Enforcement. HOPE has sharply reduced the number of people who “flunk” probation and end up with long prison terms. To study it, I sat in a courtroom for a week and actually watched how the process worked. I’ve written about it in my book, but here’s something I didn’t write about: how shocked I was by the composition of the docket. I’d been expecting a lot more simple possession — and a lot less robbery, assault, domestic violence and burglary.
Even the most dedicated anti-incarceration activist would call these “real” crimes, and they were numerous. Even the most dedicated advocate of drug legalization — such as, say, me — would have to admit that a large percentage, perhaps the majority, of the people who committed “real” crimes had some sort of a drug problem — not as in “smokes more weed than they really should” but as in “admitted to the judge that they had smoked crystal meth recently enough to flunk the drug test they were about to be required to take.”
March 18, 2015
Nathan Robinson points out a key finding from the Ferguson investigation … that in a municipality of 21,000 people, the police have outstanding arrest warrants out for 16,000:
The Department of Justice’s 102-page report is a rich source of damning facts about the Ferguson criminal justice system. But tucked halfway in and passed over quickly is a truly revelatory set of figures: the arrest warrant data for the Ferguson Municipal Court.
It turns out that nearly everyone in the city is wanted for something. Even internal police department communications found the number of arrest warrants to be “staggering”. By December of 2014, “over 16,000 people had outstanding arrest warrants that had been issued by the court.” The report makes clear that this refers to individual people, rather than cases (i.e. people with many cases are not being counted multiple times). However, if we do look at the number of cases, the portrait is even starker. In 2013, 32,975 offenses had associated warrants, so that there were 1.5 offenses for every city resident.
That means that the city of Ferguson quite literally has more crimes than people.
To give some context as to how truly extreme this is, a comparison may be useful. In 2014, the Boston Municipal Court System, for a city of 645,000 people, issued about 2,300 criminal warrants. The Ferguson Municipal Court issued 9,000, for a population 1/30th the size of Boston’s.
This complete penetration of policing into everyday life establishes a world of unceasing terror and violence. When everyone is a criminal by default, police are handed an extraordinary amount of discretionary power. “Discretion” may sound like an innocuous or even positive policy, but its effect is to make every single person’s freedom dependent on the mercy of individual officers. There are no more laws, there are only police. The “rule of law,” by which people are supposed to be treated equally according to a consistent set of principles, becomes the “rule of personal whim.”
And this is precisely what occurs in Ferguson. As others have noted, the Ferguson courts appear to work as an orchestrated racket to extract money from the poor. The thousands upon thousands of warrants that are issued, according to the DOJ, are “not to protect public safety but rather to facilitate fine collection.” Residents are routinely charged with minor administrative infractions. Most of the arrest warrants stem from traffic violations, but nearly every conceivable human behavior is criminalized. An offense can be found anywhere, including citations for “Manner of Walking in Roadway,” “High Grass and Weeds,” and 14 kinds of parking violation. The dystopian absurdity reaches its apotheosis in the deliciously Orwellian transgression “failure to obey.” (Obey what? Simply to obey.) In fact, even if one does obey to the letter, solutions can be found. After Henry Davis was brutally beaten by four Ferguson officers, he found himself charged with “destruction of official property” for bleeding on their uniforms.
March 6, 2015
While we’re on the topic of odd beliefs in the middle east, here’s a fascinating court case:
If the East ever perfects its own version of the courtroom drama — Piri Mason, say — it will surely consist of dramatic moments like this: Koksal Sahin, a Turkish man accused of murdering his girlfriend, stealing her valuables, and fleeing from Istanbul to Izmir, pleaded not guilty this week and offered the court revelatory testimony of what actually happened. “As far as I understood,” Mr. Sahin told the court, “a genie attacked her.”
According to the defendant, when this genie saw an Islamic amulet that was hanging from Mr. Sahin’s neck, the malevolent entity went berserk. Mr. Sahin realized what was happening because his late girlfriend was “saying something in Arabic” while attacking herself. The genie not only caused Mr. Sahin’s girlfriend to stab herself in the stomach and cut her own throat, he testified, but it also grabbed Mr. Sahin himself and flew him off to Izmir, where he found himself registered as a guest in a hostel, apparently in possession of the girlfriend’s valuables.
But Mr. Sahin’s story is not as ironclad as it may seem. While several aspects of the story are consistent with the behavior of genies — or djinn — according to traditional lore and even some judicial precedent, others are previously unrecorded. Djinn are certainly believed to be able to possess human beings and to influence their behavior, and they have a long mischievous history of flying people about and depositing them in distant places, especially when the humans are asleep. And while cases of djinn killing people may exist in the lore, instances of djinn murdering their own human hosts unprovoked are highly unusual.
January 31, 2015
This is a rather amazing little scene that was played out in San Francisco:
Published on 28 Jan 2015
Public Defender Jami Tillotson was unlawfully arrested at the San Francisco Hall of Justice on Tuesday, January 27, 2015 by officers of the San Francisco Police Department
Techdirt‘s Tim Cushing has the story:
As an American citizen, you can always refuse to answer questions, especially when you’re not in custody. Easier said than done, though, which is why the option of referring law enforcement to a lawyer is always on the table. Of course, police officers will try to avoid this possiblity, usually by framing the questioning as an innocuous, purely voluntary chat. They get irritated, though, when people realize this and tell them to talk to their lawyer or continually ask if they’re free to go.
So, while Tillotson’s attempt to defend her client from questioning related to a different crime may not have fallen under guaranteed Sixth Amendment protections, her willingness to protect her client from additional police questioning certainly falls within the bounds of what she (and her client) are legally allowed to do in a situation like this (i.e., “Talk to my lawyer.”)
But the police weren’t interested in speaking to a lawyer. They wanted to take pictures and ask questions without the “interference” of someone who knew how the system works. So, they arrested her for resisting arrest — which, as the video shows, she was very clearly NOT DOING BEFORE, AFTER OR DURING THE ARREST.
Tillotson objected to the arrest, but she placed her hands behind her back and allowed police to cuff her. She never struggled or otherwise impeded the officers in their duty — which was [WARNING: circular reasoning ahead] TO ARREST HER FOR RESISTING ARREST.
It’s a mindbending, oxymoronic, ugly display of force, where might = right and anyone standing in the way of an investigation needs to GTFO. With cuffs.
December 16, 2014
Conrad Black talks (partly from first-hand experience) of how badly served the United States is by its justice system:
… everyone in the United States, from the president and the wealthiest and most admired citizens down, is, in some measure, a victim of this now terribly warped justice system. No one is safe and everyone pays for it. The legal cartel is riveted on the back of the country like a horse-leech and extracts $1.8 trillion a year from the American economy as the legislators and regulators add 4,000 new measures with weighty sanctions each year, for the delectation of their confrères at the bar. At any time, 1 percent of the entire adult population is incarcerated, at a cost of about $150 billion annually and usually in unconstitutionally inhuman conditions; another 6 or so percent of all adults, male and female, are awaiting conviction (99.5 percent of those tried are convicted, an absurdly implausible number rivaled only by North Korea) or are under supervised release by often pettifogging probation officers at further great cost to the country. There are 48 million convicted felons in the United States, and even if decades-old unstigmatizing offenses such as failing a breathalyzer or being disorderly at a fraternity party are omitted, this means that approximately 15 percent of American adult males are designated felons. This is an absurd and barbarous number achieved by equal-opportunity multi-ethnic injustice, albeit unevenly applied. It presents African Americans a chance to form an invincible coalition in whose victory they would be the principal winners.
Though evidence of police and prosecution abuse pours in through the media every week, the majority of Americans, personally unaffected by the failings of the system, complacently believes that they live in a society of laws envied by the world. Neither supposition is correct. The United States has six to twelve times as many incarcerated people per capita as other prosperous democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom. This appalling state of affairs has developed gradually over the last 40 years, as the percentage of prosecutions resolved by (very often) abusive applications of the plea-bargain system without a trial has risen from about 80 (an unheard of number in other democratic countries) to 97. The percentage of incarcerated people among the population has multiplied by five in that time, so the U.S. today has 5 percent of the world’s people, but 25 percent of its incarcerated people (and 50 percent of its lawyers – counting only those countries in which a serious professional entry course is required to practice that occupation).
The Supreme Court has sat like a shelf of suet puddings while the criminal-justice system has become a conveyor belt to the country’s bloated and corrupt prison system, and lawyers have become an immense industry, hiding its avarice behind a fog of insipid pieties about the rule of law (which, as the phrase was meant by the authors of the Bill of Rights, can scarcely be said to exist in the U.S.). New York federal judge Jed S. Rakoff wrote in the New York Review of Books on November 20 that the traditional American notion of the day in court is “a mirage” because of the corruption of the plea-bargain system, in which inculpatory evidence is extorted from witnesses in exchange for immunity from prosecution, including for perjury. Every week there is some new exposé of horror stories of prosecutorial abuse, yet prosecutors enjoy an absolute immunity, even when it is revealed that they have committed crimes of obstruction of justice, as in the infamous Connick v. Thompson decision of 2011: An innocent man spent 14 years on death row because prosecutors willfully withheld DNA evidence they knew would, and ultimately did, acquit him; the U.S. Supreme Court narrowly overruled the damage award to the wrongfully convicted Mr. Thompson on a spurious technicality.
December 11, 2014
David Friedman discusses a few of the legal systems under which torture was not only possible, but omnipresent:
The use of torture to extract information is not a new idea. Under both Athenian and Roman law, slave testimony could only be taken under torture. Presumably the theory was that slaves were interrogated in order to get evidence against their owners, the owner had ways of putting pressure on the slave, so torture was needed to get the slave to tell the truth. In Imperial Chinese law, not only the defendant but also witnesses could be tortured. In that system, and I think also in some legal systems of medieval and renaissance Europe, a defendant could only be convicted by his own confession. Torture was one way of getting it.
The argument against torture, that the victim will say whatever he thinks will end it whether true or false, is also old — people in the past were not stupid. Our main source of information on Athenian law consists of orations written by professional orators to be memorized by a party to a law suit in a legal system where there were no lawyers and each party had to represent himself. There is one oration which claims that slave testimony under torture is perfectly reliable, that there has never been a case where it turned out to be false. There is another making the obvious argument on the other side, that such testimony is worthless since the slave will say whatever the torturer wants him to say.
They were both written by the same orator.
People in other legal systems that used torture were also aware of the problem. There is a collection of Chinese cases compiled in the 13th century for the use of magistrates. Many of them are cases where a clever judge realizes that an innocent person has been forced to confess under torture and figures out who is really guilty.
That raises an obvious question — if they saw the problem with torture, why did they continue to employ it? One answer is that extracting information might only have been an excuse, that the real purpose was to punish someone without having first to convict him. That is a possible explanation in some contexts, including the current case of torture by the CIA. But it does not explain contexts where the person being tortured was not the suspect but a potential witness.
A second possible explanation is the belief that a competent interrogator could distinguish a real confession from a fake one. That strikes me as the most likely explanation in the Roman and Athenian cases, where it was the defendant’s slave, not the defendant, who was being interrogated.
A third explanation is that torture might produce information that could be checked. That is the situation in the hypothetical cases sometimes offered in defense of the use of torture — the suspect is being forced to say where the kidnap victim, or the terrorist time bomb, is concealed. More plausibly, to say where the loot is hidden.