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Congress, Miranda and the “Public Safety” Exception

Last week Attorney General Holder suggested that the administration may seek legislative changes to facilitate the questioning of terrorism suspects within the criminal justice system.  One potential change would be to expand the “public safety” exception to Miranda v. Arizona, 384 U.S. 436 (1966), so as to allow law enforcement officials to hold and interrogate suspected terrorists without providing the so-called “Miranda warnings.”

Some experts, such as Professor Orin Kerr, say that the Supreme Court is likely to give little deference to such a statute.  Kerr suggests that the constitutional nature of the Miranda rule means that Congress has no role in determining its scope or application.  (Kerr, btw, will be serving as a special advisor to Senator John Cornyn for the Kagan nomination).  Senator Pat Leahy expressed a similar view yesterday.

I think Kerr and Leahy are wrong.  To understand why, one needs to be familiar with the dialogue between Congress and the courts with regard to Miranda specifically and with regard to the broader question of each branch’s role in interpreting the Constitution.

In Miranda, the Court found that custodial interrogation is inherently coercive, noting that “the very fact of custodial interrogation exacts a heavy toll on individual liberty, and trades on the weakness of individuals.”  It acknowledged that the admissions in the cases before it were not necessarily involuntary in the sense previously thought to justify exclusion, but nonetheless found that the “current practice of incommunicado interrogation” conflicts with “one of our Nation’s most cherished principles — that the individual may not be compelled to incriminate himself.”  It concluded that “[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.”

To guide law enforcement as to what would be “adequate protective devices,” the Court laid out the now-famous Miranda warnings.  It was careful to note that it was not creating a “constitutional straitjacket” to prevent Congress and the States from adopting alternative procedures to protect a suspect’s Fifth Amendment rights.  However, in the absence of “other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it,” the Miranda Court held that the warnings would be required before a suspect’s custodial statement could be admitted into evidence.

Congress reacted to the Miranda decision by holding hearings that questioned the empirical basis of the Court’s assessment of custodial interrogations. The Senate Judiciary Committee heard from witnesses such as then-District Attorney (now U.S. Senator) Arlen Specter, who “pointed out that the so-called third degree methods deplored by the Supreme Court and cited as a basis for their opinion in Miranda is not a correct portrayal of what actually goes on in police stations across the country.”  Other critics of the Miranda decision included Quinn Tamm, the executive director of the International Association of Chiefs of Police, who stated that “while these coercive practices might have been approved 30 years ago, they have no place in modern police techniques.”   Thus, coercive practices in police interrogations constituted the “exception rather than the rule,” and the Senate Judiciary Committee concluded that custodial interrogations were not in fact inherently coercive.

In 1968, two years after Miranda was decided, Congress enacted 18 U.S.C. § 3501, which purported to establish a multi-standard test for determining the admissibility of confessions.  The law in essence restored the pre-Miranda law by requiring the court to make a determination whether the confession was voluntary based on the totality of the circumstances.  It directed the judge to consider certain specified factors, including whether the defendant had been warned of his rights, but provided that no one factor was to be conclusive on the issue of admissibility.

The legislative history of section 3501 clearly indicates that it was intended to “overrule” Miranda, and prosecutors did not attempt to rely on it in court in the years following enactment.  They no doubt thought it unlikely that the courts would follow a statute purporting to overrule a constitutional holding of the Supreme Court.

As time went on, however, subsequent Supreme Court decisions began to call into question the constitutional basis of Miranda. Although it was always clear that the Constitution itself did not require any specific warnings, these later decisions suggested that the Miranda warnings were a mere “prophylactic rule” and that the Constitution did not require the exclusion of voluntary confessions, even if there were no warnings or alternative procedures to protect the suspect’s rights.

For present purposes, the most significant of these decisions was New York v. Quarles, 467 U.S. 651 (1984), a case involving a rape suspect who was apprehended by the police.  The victim flagged down two police officers immediately after the rape, described the suspect, and told them he had a gun.  The officers located the suspect, and, after a brief chase, arrested and handcuffed him.  After discovering that he had an empty shoulder holster, one of the officers asked him “where’s the gun?”  The suspect then indicated where he had ditched the revolver, which the officer recovered.

Because the suspect was clearly in custody, and had made the incriminating statement regarding the gun before being warned of his rights, the state courts suppressed the statement (and the gun itself) under Miranda.  The Quarles Court, in an opinion written by then-Justice Rehnquist, reversed.  It held that there was a “public safety” exception to Miranda that applied in a “kaleidoscopic situation such as the one confronting the officers.”  In short, it did not believe that the warnings were required in “a situation in which police officers ask questions reasonably prompted by a concern for the public safety.”

Justice Rehnquist’s opinion fairly drips with skepticism regarding the validity of the initial Miranda decision.  Noting that the Miranda dissenters warned that the ruling would have the effect of decreasing the number of suspects who confessed, he rather acerbically notes that the Miranda majority “apparently felt that whatever the cost to society in terms of fewer convictions of guilty suspects, that cost would simply have to be borne in the interest of enlarged protection for the Fifth Amendment privilege”  (emphasis added).  Where public safety was at stake, however, the potential cost of deterring the suspect from responding was “something more than merely the failure to obtain evidence.” Accordingly, the Quarles Court concluded that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”

It is impossible to square the holding in Quarles with the notion that Miranda is constitutionally required.  After all, as the Quarles dissenters pointed out, a custodial interrogation does not become any less coercive by virtue of the fact that the public safety is at stake.  If an unwarned interrogation violated the Fifth Amendment, the confession in Quarles would have had to be suppressed, regardless of the public interest in getting the information.  The only logical conclusion from the holding in Quarles was that the admission of unwarned, but voluntary, custodial confessions did not violate the Constitution.

The reasoning of Quarles also suggests that the Miranda rule was essentially derived from balancing the public interest in obtaining criminal convictions against the danger posed by potentially coercive interrogations.  Such a task would seem to be a quintessential legislative endeavor, as the Senate Judiciary Committee had in fact suggested in considering section 3501.  It was only a matter of time before the courts would be asked to consider the validity of the federal statute in light of the new judicial perspective on Miranda.

I will turn to that story in my next post.

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