Guest Blogger: The Downside of Shrinking Miranda Rights

By Richael Faithful

During this Supreme Court term, the Roberts Court handed down yet another disappointing decision on Miranda rights. In Berghuis, Warden v. Thompkins, a 5-4 Court ruled that suspects who are in custody and being interrogated by the police must “unambiguously” invoke their right to remain silent by telling police that they wish to do so. The ruling has been criticized by legal analysts across the ideological spectrum as further tilting the police-suspect balance of power toward law enforcement. But the real disappointment behind the ruling is that it represents another loss for freedom.

Miranda warnings, popularized by television cop dramas, are not constitutional guarantees themselves, but are instead safeguards created by the Supreme Court in the 1966 case, Miranda v. Arizona. "Miranda rights" —the right to remain silent, the right to know that a statement may be used against a suspect in court, and the right to counsel or the provision of one for the suspect—protect Fifth and Sixth Amendment rights against self-incrimination and to legal counsel, respectively. Because Miranda warnings are court-created rights, they are also rights that courts can diminish. Indeed, as the Supreme Court has trended to the political right since the 1960s, it has rolled back various aspects of the Miranda ruling though never eliminated the rights themselves.

Over the last forty years, alongside the erosion of Miranda rights, the movement toward criminalization has cast a shadow on the nation’s political landscape. Criminalization is a legal and political phenomenon by which behaviors are transformed into crimes or more severe criminal penalties are attached to illegal behavior. Less politically powerful groups are often targeted by criminalization, such as communities of color, working class and poor communities, and many immigrant communities. For example, the 1980s brought the War on Drugs to counter the crack epidemic, sweeping many young people who were low in the ranks of the drug runners into prison; the 1990s brought mass incarceration, even of children, despite lower crime rates; and the turn of the century has brought a strong anti-immigrant criminalization campaign. These events are manifestations of broader political and cultural trends toward criminalization, which has become one of the nation’s most urgent civil rights crises.

Then, what is the meaning of the Thompkins decision? I think that it may not be particularly important in the shrinking Miranda rights universe, but it is a drop in the spilling bucket of court cases and other governmental actions that show continued support for a growing police state, increasingly harsh criminal penalties, and excessive zero-tolerance policies. The Thompkins ruling manifests another element to the criminalization trend—a hard philosophical shift away from a presumption of innocence to one of guilt.

The Thompkins dissent, written by former prosecutor Justice Sotomayor, speaks to two important points regarding the majority’s counter-intuitive “upside down” logic. First, the opinion suggests that the benefit of any doubt should be reserved for the protection of the individual’s rights. In other words, suspects who fail to invoke their right to remain silent clearly should still be entitled to their right because they still have not “knowingly and intelligently” waived it. The dissent raises this issue because whether a suspect must affirmatively waive a right or whether a right is automatically waived because a suspect fails to invoke a right is a technical though highly contentious issue that has been debated in Miranda progeny cases over the years between court liberals and conservatives. Yet shifting the burden from police to suspect, so obviously undermines the spirit of the Miranda decision, it undermines the right altogether. The reason that requiring suspects to “unambiguously” invoke their right to remain silent sounds so benign is because attitudes toward individuals under custodial interrogation have changed—we assume that only shady characters are arrested, and that innocent people “have nothing to hide.” We ignore that certain people are most likely to be arrested, and that most people need lawyers to navigate an “inherently coercive” criminal system. It is these foundational values that shaped the Miranda decision so that silence and un-cooperativeness sent a clear message—“I have invoked my right to remain silent, and the interrogation is over.”

In addition, the dissenting opinion criticizes the majority for skimming over key facts about the conditions under which Thompkins was interrogated until his one-word acknowledgment that eventually led to his conviction. Thompkins was confined by police in an eight by ten foot room for interrogation. Beside a few short responses to administrative questions, mostly consisting of “yes” and “no” replies, he did not respond to repeated invitations by police to offer information or confess to the crime. Finally, after nearly three hours, an officer asked him whether he believed in God, to which he replied “yes” in near-tears. Then, he was asked whether he prayed to God for the shooting, to which he simply replied, “Yes.”

He refused to sign a written confession and, during trial, testimony from another person at the scene of the crime indicated that Thompkins was not the shooter. One word uttered by Thompkins under very dubious circumstances led to his conviction. His refusal to cooperate with police was a clear message but it was a message that was ignored by police. As this case suggests, a suspect’s engagement with police during an interrogation, without counsel, is an invitation for police abuse.

The downside of shirking Miranda rights is that a person who becomes a suspect will be left without the benefit of full constitutional protections at the time when she or he needs it the most.  Altogether, the Roberts Court has held that suspects must tell police that they wish to invoke their right to remain silent; that suspects are not required to be told explicitly by police that they have a right to a lawyer; and that a suspect’s request for an attorney expires two weeks after being released from custody. Intensified pressure put onto police and prosecuting attorneys to be “tough on crime” is part of the trend in America toward criminalization -- one that is getting bigger and uglier when pitted against our precious, shrinking criminal constitutional safeguards.

The Thompkins ruling is undoubtedly bad but it is even much worse than we think.

Richael Faithful is a second-year student at American University Washington College of Law. She is Editor-In-Chief of The Modern American, a legal publication dedicated to diversity and the law. She is also a former community organizer with the Virginia Organizing Project. As a law student she continues organize and advocate for radical, transformative change.

(Photo by Jonathan Caves.)