Yesterday’s other Roberts Court atrocity

In what is a fantasy month for Sam Alito’s worst authoritarian impulses, yesterday authored an opinion not only limiting the civil remedies available to people whose Miranda rights were violated…

…let us pause to have a brief play to describe how Republican judges believe that the criminal procedure provisions of the Bill of Rights should be enforced:

Alito: “The exclusionary rule is bad because it might lead to reliable evidence been excluded. Civil remedies are preferable.”

Defendant: “OK, we sue for civil damages.”

Alito: “Haha no.”

…but as Hannah Mullen explains he’s also signaling that many landmark precedents are in the cross-hairs:

As Justice Elena Kagan explained in dissent, the decision undermines Miranda by limiting the remedies available for its violation. A defendant whose unwarned statement is introduced against him in court—that is, a person whose Miranda rights have been violated—can move to suppress the unwarned statement. If he fails, he risks being wrongfully convicted and spending years in prison. Even if he eventually gets his conviction reversed, Justice Kagan asks, “what remedy does he have for all the harm he has suffered?” The answer, now, is none. He can’t sue the prosecutor who introduced the statement, because the prosecutor is absolutely immune from civil liability. And now, after Vega, the defendant can’t sue the cop who took the statement, either. 

Cutting the legs out from under Miranda is bad enough. But it’s not the most dangerous thing about Vega. Throughout the opinion, the Court describes Miranda as a “prophylactic rule.” In plain English, that means that Miranda warnings aren’t directly required by the Constitution, but are instead judicially-crafted rules designed to protect people’s core Fifth Amendment right against compelled self-incrimination. In a footnote, Alito questions whether the Supreme Court even has the “authority to create constitutionally based prophylactic rules”—like Miranda—“that bind both federal and state courts.” 

For now, he says, the Court will treat Miranda as good law. But Alito’s signal to prosecutors’ offices is clear: Miranda is suspect, and we’re willing to entertain arguments that we should do away with it for good.

It gets worse still. The footnote implies that several other foundational “prophylactic” criminal procedure rules might also be ripe for overruling. To do so, Alito cites a series of law review articles that analyze and critique these “prophylactic” rules. Some cases are perhaps less familiar than Miranda: United States v. Pearce, for example, held that in order to ensure that vindictive prosecutors do not retaliate against a defendant who successfully appealed his first conviction, any sentence imposed on retrial that is harsher than the original must be clearly explained in the record, and based upon the defendant’s conduct since the first conviction. Another article suggests that United States v. Wade, which held that the Sixth Amendment right to counsel applies during post-indictment lineups, is also a “prophylactic” rule.

More alarmingly, one of the articles identifies Mapp v. Ohio, the famous Fourth Amendment case that established the exclusionary rule—holding that evidence obtained illegally cannot be introduced against a defendant at trial—as a prophylactic-rule case. The cited article, Constitutional Common Law by Professor Henry Monaghan, argues that Mapp is neither “part and parcel of the underlying Fourth Amendment right nor a necessary remedy for it.” 

In conclusion, it would be BLACKMAIL to suggest that the ability to make Supreme Court appointments should influence anybody’s behavior with respect to voting in the presidential election. Let’s see if Roe survives the weekend or not!