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Saturday, March 12, 2016

You've got rights, if you can keep them.

Fifty years ago this month, the US Supreme Court finished hearing Miranda v. Arizona, a case that would prove pivotal in American jurisprudence.
Cotton Boll Conspiracy thus begins a fascinating tale of how we got Miranda warnings fifty years ago. 

Within a few years, Miranda warnings were universal on television cop shows, and that's a good example of how the box in the den was changing Americans' lives and views faster than anyone could have ever imagined- if, indeed, they could have imagined it at all. In a classic example of what the comic strip character Calvin declared- "verbing weirds language"- reading  defendant his rights became "Mirandizing."


Law-and-order pols, then ascendant in US life, were horrified, and stuck a pointless repeal of the decision into the Omnibus Crime and Safe Streets Act of 1968. Critics took up the banner, arguing that having to tell criminals they have rights causes confession rates to drop, and unsolved crimes to increase on police dockets. By 1984, the Supreme Court carved out a public safety exception to Miranda for exigent circumstances when there is an immediate threat to public safety. The war on terror has led to a war on Miranda by law enforcement and its allies, seeking to open it up to accomodate the sort of baleful, Humpty-Dumpty interpretations that underpinned the federal government's "snahnaced interrogation techniques" of the Bush era. Wikipedia notes:
In 2010, the Federal Bureau of Investigation encouraged agents to use a broad interpretation of public safety-related questions in terrorism cases, stating that the "magnitude and complexity" of terrorist threats justified "a significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case", continuing to list such examples as: "questions about possible impending or coordinated terrorist attacks; the location, nature and threat posed by weapons that might pose an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks". A Department of Justice spokesman described this position as not altering the constitutional right, but as clarifying existing flexibility in the rule. 
Prosecutors initially argued for this exception to be applied to the 16 hour interrogation of Dzhokhar Tsarnaev in 2013. However, the exception was not considered by the court because the prosecutors later decided not to use any of that evidence in their case against Tsarnaev. 
The New York Court of Appeals upheld the exception in a 2013 murder case, People v Doll, where a man with blood on his clothes was detained and questioned.
State law enactments of the rule have proved a fertile ground for efforts to limit the scope of Miranda- when it applies and how it is invoked, and if it ought to be expanded, whether confessions are voluntary.

Perhaps the most virulent American opponent of Miranda is a Utah law professor, Paul Cassell. After clerking for Court of Appeals Judge Antonin Scalia and Chief Justice Warren Burger, Cassell spent years litigating his way through the federal courts, trying to thread the needle and get the Supreme Court to overturn Miranda.

In Dickerson v. US, 530 US 428 (2000), however, the Supreme Court handed Cassell his hat, 7-2, and struck down the 1968 congressional act.

Cassell's old boss, Justice Scalia, issued a trademark dissent, joined by Justice Clarence Thomas in denouncing the majority decision as another corrupt bargain leaving constitutional originalism shakcled to its Rock, like Prometheus, awaiting the next feast upon its vitals:
Those to whom judicial decisions are an unconnected series of judgments that produce either favored or disfavored results will doubtless greet today's decision as a paragon of moderation, since it declines to overrule Miranda v. Arizona, 384 U. S. 436 (1966). Those who understand the judicial process will appreciate that today's decision is not a reaffirmation of Miranda, but a radical revision of the most significant element of Miranda (as of all cases): the rationale that gives it a permanent place in our jurisprudence...to justify today's agreed-upon result, the Court must adopt a significant new, if not entirely comprehensible, principle of constitutional law. As the Court chooses to describe that principle, statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution, but when what they prescribe contradicts a decision of this Court that "announced a constitutional rule," ante, at 7. As I shall discuss in some detail, the only thing that can possibly mean in the context of this case is that this Court has the power, not merely to apply the Constitution but to expand it, imposing what it regards as useful "prophylactic" restrictions upon Congress and the States. That is an immense and frightening antidemocratic power, and it does not exist.
     It takes only a small step to bring today's opinion out of the realm of power-judging and into the mainstream of legal reasoning: The Court need only go beyond its carefully couched iterations that "Miranda is a constitutional decision," ante, at 8, that "Miranda is constitutionally based," ante, at 10, that Miranda has "constitutional underpinnings," ante, at 10, n. 5, and come out and say quite clearly: "We reaffirm today that custodial interrogation that is not preceded by Miranda warnings or their equivalent violates the Constitution of the United States." It cannot say that, because a majority of the Court does not believe it. The Court therefore acts in plain violation of the Constitution when it denies effect to this Act of Congress.
...Today's judgment converts Miranda from a milestone of judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance. In imposing its Court-made code upon the States, the original opinion at least asserted that it was demanded by the Constitution. Today's decision does not pretend that it is--and yet still asserts the right to impose it against the will of the people's representatives in Congress. Far from believing that stare decisis compels this result, I believe we cannot allow to remain on the books even a celebrated decision--especially a celebrated decision--that has come to stand for the proposition that the Supreme Court has power to impose extraconstitutional constraints upon Congress and the States. This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people. 
I dissent from today's decision, and, until §3501 is repealed, will continue to apply it in all cases where there has been a sustainable finding that the defendant's confession was voluntary.
The majority decision, written by Chief Justice Rehnquist, hints that a majority wanted in fact, to overrule Miranda. In fact, when no one argued to uphold the 1968 law the Court invited Paul Cassell to brief them. He proved too clever by half, presenting the court with a Faustian bargain: overruling Miranda would not only sharply curtail public acceptance of the Court's legitimacy, it would also mean ceding the power of judicial review to Congress. That was a bridge too far, the Chief Justice conceded (with an elegant backhand to Scalia):
Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. See, e. g., Rhode Island v. Innis, 446 U. S. 291, 304 (1980) (Burger, C. J., concurring in judgment) ("The meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda, disparage it, nor extend it at this late date"). While" 'stare decisis is not an inexorable command,'" State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) (quoting Payne v. Tennessee, 501 U. S. 808, 828 (1991)), particularly when we are interpreting the Constitution, Agostini v. Felton, 521 U. S. 203, 235 (1997), "even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some 'special justification.'" United States v. International Business Machines Corp., 517 U. S. 843, 856 (1996) (quoting Payne, supra, at 842 (SOUTER, J., concurring), in turn quoting Arizona v. Rumsey, 467 U. S. 203, 212 (1984)).
We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. See Mitchell v. United States, 526 U. S. 314, 331-332 (1999) (SCALIA, J., dissenting) (stating that the fact that a rule has found "'wide acceptance in the legal culture'" is "adequate reason not to overrule" it). [Emphasis added- WLJ] While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, see, e. g., Patterson v. McLean Credit Union, 491 U. S. 164, 173 (1989), we do not believe that this has happened to the Miranda decision. If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision's core ruling that unwarned statements may not be used as evidence in the prosecution's case in chief. 
The disadvantage of the Miranda rule is that statements which may be by no means involuntary, made by a defendant who is aware of his "rights," may nonetheless be excluded and a guilty defendant go free as a result. But experience suggests that the totality-of-the-circumstances test which § 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner. See, e. g., Haynes v. Washington, 373 U. S., at 515 ("The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw"). The requirement that Miranda warnings be given does not, of course, dispense with the voluntariness inquiry. But as we said in Berkemer v. McCarty, 468 U. S. 420 (1984), "[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was 'compelled' despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare." Id., at 433, n. 20. 
In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves.8 The judgment of the Court of Appeals is therefore 
Reversed.
Cassell was rewarded for his pains by a federal judgeship from President George W. Bush a year later, when he was 42. He took office in 2002, served five years, and resigned- complaining of the poor pay- to return to teaching and the championing of his own, expansive, notions of the rights of crime victims.

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