Will Baude at VC/WaPo pointed to a fascinating article by Florida lawprof John Stinneford, entitled “The Illusory Eighth Amendment.” As much fun as the 8th may be, the part that made this particularly curious had little to do with it, but rather with the Supreme Court’s punting in Miranda v. Arizona.
Discussion of Miranda these days is largely limited to two aspects, the first being that it’s a prophylactic rule, and the second that the Court expected that once given, no one would ever talk to cops again. After all, could it be any clearer that anything you say can and will be used against you in a court of law? Of course, experience has shown otherwise.
The surprise here, according to Baude, is that Stinneford raises what Miranda failed to address:
What Stinneford argues is that this is not actually how the Court’s reasoning in Miranda works. For Miranda to be a prophylactic rule, the Court would have to 1, have a basic sense of what the regular rule is, and then 2, create a second rule that would be more protective than that. But the Court actually flirts with at least three different theories of what the Constitution itself protects, and Miranda underprotects two of them. In other words, thinking of Miranda as prophylaxis may give it too much credit.
The starting point is the disconnect between how Supreme Court justices think people will react versus how people will really react. Not that they aren’t regular guys and gals like the rest of us, but there is a certain isolation having your own branch of government and enjoying a life where you’ve never been hauled into a small, windowless room in cuffs and subjected to the Reid Technique.
Stinneford offers this alternative perspective, beginning with a gratuitous slap at Warren Court activism:
The truth of the matter is that the Supreme Court in Miranda did not particularly care what the term “compelled” means. The Court was interested in enforcing its own instrumental concerns, not those embodied in the constitutional text, and therefore, it used implementation as a substitute for interpretation.
But then he gets into the hard stuff:
The Court did not like the fact that police sometimes used brutality or improper pressure. But it also did not like the fact that the process disadvantaged ignorant, weak, and poor defendants. The Court also disliked the fact that wealthy (often white) defendants with the money and presence of mind to hire an attorney tended to do better than poor (often black or Hispanic) defendants who did not. Some of these concerns revolved around the idea of compulsion, but some revolved around a more general concern for societal power disparities and fairness.
So below the surface, Miranda was not just about warning subjects of their rights, but a bit of societal micromanagement to address racial and financial disparities?
[I]n Miranda, the Court flirted with the idea that certain kinds of pressure tactics and trickery might constitute compulsion, but never quite reached this conclusion. The Court also flirted with the idea that custodial interrogation itself might constitute compulsion because of the pressures associated with custodial interrogation, but never quite reached this conclusion. Because the Court never held that these practices constituted compulsion (and indeed, never determined what “compelled” means), many of the practices disliked by the Miranda Court are still used today. As long as the police give the requisite warnings and obtain the requisite waiver, they can still keep the defendant alone in a room and question him for hours, using psychological pressure and trickery to induce a confession.
If I understand correctly, Stinneford’s argument is that the Supreme Court might have dealt with the root causes of compulsion and coercion of custodial interrogation (though not non-custodial?), but instead decided to direct its efforts to the process rather than the substance of what’s wrong with interrogations.
Because, I guess, Supreme Court justices know stuff about people. They’re people persons.
The hope was that these warnings would not only reduce the incidence of police brutality and improper pressure, but would make the system fairer generally. This was a noble goal, and one that was in some ways achieved. But it was not built on an interpretation of the term “compelled.”
Which explains a lot when considering that the Miranda warnings have failed miserably in getting people to shut up when subject to custodial interrogation, and yet the forces of compulsion continue unabated, and without any meaningful law to distinguish a voluntary statement from one induced by manipulation, coercion and, yes, compulsion.
Memo to Justices: Get out more. You really don’t have as good a feel for people as you think.