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Diluting Miranda

[ 26 ] February 22, 2012 |

The landmark criminal procedure decisions of the Warren Court have generally not been overruled, but this is somewhat misleading; in many cases, the precedents formally remain standing, but have been interpreted in ways that give them much less bite.

With Miranda v. Arizona, the dilution process continued yesterday. It’s rarely a good sign when you see Alito’s name on a majority opinion in a civil liberties case, and Howes v. Fields is no exception. Yesterday’s ruling concerned the admissibility of a confession made by a prisoner who was questioned by two sherrif’s deputies for more than five hours and while being held in prison. The prisoner did not have the assistance of counsel, was not given the Miranda warnings, and said more than once that he did not want to answer further questions. Seems a pretty clear violation of Miranda, right? Well, if so, you’re not Samuel Alito, whose opinion held that Fields was not actually “in custody” at the time and therefore not subject to the requirements of Miranda. While Ginsburg’s dissenting opinion agreed that the Court had not previously established that this kind of context constituted custody, as she points out the failure of the Court to establish this given the opportunity involves ignoring the standards set forth in Miranda:

Fields, serving time for disorderly conduct, was, of course, “i[n] custody,” but not “for purposes of Miranda,” the Court concludes. I would not train, as the Court does, on the question whether there can be custody within custody. Instead, I would ask, as Miranda put it, whether Fields was subjected to “incommunicado interrogation . . . in a police-dominated atmosphere,” whether he was placed, against his will, in an inherently stressful situation, and whether his “freedom of action [was] curtailed in any significant way.” Those should be the key questions, and to each I would answer “Yes.”

As the Court acknowledges, Fields did not invite or consent to the interview. He was removed from his cell in the evening, taken to a conference room in the sheriff’s quarters, and questioned by two armed deputies long into the night and early morning. Ibid. He was not told at the outset that he had the right to decline to speak with the deputies. Ibid. Shut in with the armed officers, Fields felt “trapped.” Although told he could return to his cell if he did not want to cooperate, Fields believed the deputies “would not have allowed [him] to leave the room,” And with good reason. More than once, “he told the officers . . . he did not want to speak with them anymore.” He was given water, but not his evening medications. Yet the Court concludes that Fields was in “an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.”

Critical to the Court’s judgment is “the undisputed fact that [Fields] was told that he was free to end the questioning and to return to his cell.” Never mind the facts suggesting that Fields’s submission to the overnight interview was anything but voluntary. Was Fields “held for interrogation”? Brought to, and left alone with, the gun-bearing deputies, he surely was in my judgment.

It’s classic Roberts Court “minimalism,” in other words. The Court doesn’t overrule Miranda, but it does invent some irrelevant reasons not to apply it in particular context.

Ginsburg dissented for Breyer and Sotomayor but not Kagan, who joined the Alito’s opinion in full. As this blog may have mentioned on one or two occasions, Kagan isn’t awful but certainly represents a missed opportunity. “To the right of Breyer on a Fifth Amendment case” is not what you’re looking for given an unusually large Senate majority to work with.

…Glenn beat me to the point on Kagan.

Comments (26)

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  1. actor212 says:

    Wow. If there was ever a coercive environment, I’d say being dragged from your cell to answer questions late into the night would be near the top of the list, a bit after waterboarding.

    • scott says:

      Not for Justice Kagan, though, for whom it’s A-OK. Gotta love how Bush picks Roberts and Alito to push this kind of thing, and Obama picks someone who looks at this situation and thinks, nothing to see here, move along, roll over and go back to sleep. The ratchet to the right seems to be working seamlessly.

    • David Hunt says:

      There’s always mock executions. “Your Honor, their weren’t even real bullets in the guns when we pointed them at them and pulled the triggers. How can that be coercive?”

      Jeez. The guy said he wanted to end the interrogation multiple times, but they wouldn’t let him leave the room, plus he was in jail already. But Alito thinks he wasn’t “in custody?” Kagan thinks he wasn’t in custody?!!! I pray that I’m never arrested for anything in my entire life. I’d end up confessing the the Kennedy Assassination and I wasn’t even born then.

      • David Hunt says:

        Arrgh! ” THERE weren’t even real bullets in gun.”

        It ticks me off when other people mess up the there/their/they’re thing. I can’t believe I did that.

  2. Bart says:

    At the time of Kagan’s nomination Obama was in full wimp mode, foolishly hoping to charm the other party. Will his next candidate be Orrin Hatch?

  3. david mizner says:

    A missed opportunity, or a seized opportunity to pick a justice who shares President Obama’s views on executive power in the War of Terror?

  4. Anderson says:

    What does affirmative action have to do with Miranda?

    (IOW, check your link, Scott.)

  5. c u n d gulag says:

    This wasn’t custody in the same way that waterboarding isn’t torture – just someone else making sure that you’re gargling.

  6. L.M. says:

    Both Kagan and Breyer are former law professors. They’ve lived easy lives of abstract reasoning, content to believe that the law actually exists as it was presented to them in the reported, appellate cases they spent their careers reading.

    Sotomayor is a former prosecutor. At least she understands how fucked up the system can be.

  7. Glenn says:

    The best part to me of decisions like this is having the Supremes opine on what coercion a prisoner in this situation is likely to feel or not to feel. Really, could you find 9 people in the US less likely to have any clue on that topic?

  8. Anonymous says:

    is there any SCOTUS precedent where the suspect was told, “You are free to leave if you don’t want to answer any more questions” yet the interrogation was held to be custodial?

  9. Mike Schilling says:

    “While bamboo shoots under the fingernails are a generally recognized sign of coercion, one must recognize that emery boards are made of cardboard, and the thumbnail is not, strictly speaking, a fingernail.”

  10. mpowell says:

    It seems to me there is a big problem with the facts of the case. It’s not possible for the guy to have actually been free to leave and yet for him to have been kept in the room after telling the officers that he didn’t want to answer any more questions. Either you are claiming the guy is lying (which I guess a lower court decides), or the police officer’s claim that he was free to leave is bullsh*t. If you’re in custody, you can’t just up and leave the room up your own volition. You have to be escorted out by somebody. I don’t think you need to be very familiar with the way the system works on the ground to realize that the claim that he was truly free to leave is simply nonsense. In other words, there is no excuse for a SC justice to misapprehend this point. For Kagan to do so is particularly disappointing. It is harder to find a better example of using some bullsh*t legal distinction (that doesn’t actually have a valid logical basis) to erode some pre-existing legal principle. You only do this kind of thing if you don’t like the legal precedent but you are unwilling to acknowledge the extent to which you are overturning that precedent.

    • L2P says:

      He was “free to leave” in that he could at any time have told the officers he wanted the questioning to end and he would be able to go back to his cell, albeit after waiting a little bit and getting escorted. That might not be what we normally mean when we say “free to leave” a place, but that’s what it means in a custodial situation. At a police station, for example, when you say want to stop the questioning, you don’t get to just walk away; some cops are going to come and escort you out. That might take a while, depending on the size of the station.

      We can certainly doubt that he actually WAS free to go back to his cell, but that’s possible. I’ve been at questionings where the prisoner was really happy to be hanging out with me; it beats the nothing they were doing, and when they’re bored, I call the guard and they get escorted back.

      • David in NYC says:

        he could at any time have told the officers he wanted the questioning to end and he would be able to go back to his cell

        Yeah, try that and let me know how it goes.

        You’ve never actually been arrested and/or in custody, have you?

  11. rea says:

    Goodness. Speaking as a practicing criminal defense attorney, this result is about what I’d expect, and in line with established precedent. Generally, if someone is told by the interrogators that he is free to leave, and that does not turn out to be a sham, Miranda warnings need not be given. Of course, in the context of a prioner serving a jail term for an unrelated offense, “free to leave” means “free to go back to your cell,” but that’s not a surprising result.

    Interrogation of persons who are already prisoners doesn’t fit neatly into the Miranda paradigm. I’d like to see a bright line rule that everyone in jail or prison has to get the Miranda warnings before being interrogated, but I’m frankly surprised that there were 3 votes for a watered-down version of that position.

    • L2P says:

      I am frankly surprised we didn’t see a bright-line rule that everyone in prison has already been arrested at least once and so has already heard the Miranda warning, therefore there is no reason for another one. Not strictly speaking true, but at the Supreme Court level justices can make up their own facts anyway.

  12. Jim Lynch says:

    George Shultz (R-Halliburton) famously noted, “There’s no such thing as a finish-fight in Washington”.

  13. Joe says:

    Really, Glenn Greenwald should just wait. A few cert denials and a ruling about Miranda in the prison context that is not even a complete loss on doctrine (and on habeas, had no dissent) is pretty thin gruel. rea seems right on the point but even if not, this is not some sort of deal breaker.

  14. TK421 says:

    “Kagan isn’t awful”

    Well, that’s good enough. Things are going so well in America that “not awful” is all we need.

  15. [...] Merritt, along with Scott Lemieux and Glenn Greenwald, condemns the Supreme Court’s latest assault on Miranda rights. Miranda [...]

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