an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I found utterly dismaying both the tone and the analysis of Prof. Mazzone's snarky attempt to take down Emily Bazelon for her cautionary comments about the refusal to read Miranda warnings. The only thing lacking from standard-model Fox News rants was a reference to "Yale Law School pointy-headed airheads" (like Jack Balkin?). One can obviously have a genuine debate about whether there is, or should be, a "national security exception" to Miranda, but, presumably, that debate can be carried out with a courtesy lacking in Prof. Mazzone's post.
Moreover, his "analysis" of Miranda is itself not a model for law students or professors. Miranda, whether a wise decision or not, is predicated on the notion that the Constitution, and the values of dignity that it protects even for the lowest among us, requires that criminal defendants, upon being arrested, be informed of their constitutional rights. It went on to say that the only practical way of safeguarding this important constitutional right is to exclude evidence obtained without such warnings. (Again, one can obviously debate the merit of exclusionary rules.)
What Prof. Mazzone has done is to adopt an entirely Holmesian perspective toward the decision; i.e., it simply establishes a "price" that the police have to pay for doing whatever in hell they want to do. If they don't mind having evidence excluded, then they properly feel under no obligation to adhere to the constitutional norm articulated by the SupremeCourt. As most of you know, I'm not a devotee of judicial supremacy, so I'm more than happy to read arguments that the Supreme Court has been mistaken and even that there's no obligation to obey mistaken decisions. But that's not Prof. Mazzone's argument.
As it happens, I think there's a lot of heuristic merit to a Holmesian ("bad man") understanding of the law, but, obviously, its implications go far beyond the duty of police to read suspects their Miranda rights. Does Prof. Mazzone think it's perfectly acceptable for corporations, for example, to do "whatever it takes" to stifle any union-organizing movements so long as they're willing to pay the (unlikely) penalty for doing so? Ditto for our compliance with the tax laws of the United States, a subject of special interest this month? Is it perfectly acceptable for presidents to order the torture of those they deem America's enemies because they are told that any lawsuits challenging this will be dismissed under the "state secret" or "political question" doctrines and thus beyond enforcement, as suggested by the DC Circuit in the Al-Alaki case dealing with targetting assassinations? Is he adopting the well-articulated arguments in Abner Greene's recent book, published by the Harvard University Press and well worth extended discussion, that there is not even a prima facie obligation to obey any law (simply because it's"the law")? All of these are serious questions, that can be debated seriously and courteously.
Emily Bazelon is an able, well-educated, and thoughtful commenter on contemporary legal affairs. That doesn't mean that she's always right. But it does suggest that she's always entitled to be treated with more courtesy than Prof. Mazzone displayed in his remarks. Posted
by Sandy Levinson [link]
I think it's important to remember what Miranda IS. It's not refraining from torture, that's a given. It's not refraining from trickery, unfortunately that's NOT a given.
It's just telling the suspect that anything they say might be used against them, and that they have the right to shut up. Miranda is utterly irrelevant if you're not going to use what they say against them.
IOW, if your mad bomber, who may have left time bombs lying about, and may have confederates about, is spilling his guts, and you've got enough evidence to nail him even if you don't use his statements, you don't need to Mirandize him.
I'm not sure I agree with your interpretation of what the Miranda warnings are about. Leaving aside any potential substantive due process issue that arises from actual police brutality, isn't the idea that because the Fifth Amendment only protects against compulsion to "be a witness against oneself", the Constitution actually has not been violated unless the statement is admitted at trial? The Miranda warnings aren't a right in themselves; they're purely prophylactic.
Whatever the merits (or not) of Holmesian-style "bad man" arguments in general, it is worth noting that the Court itself has endorsed Professor Mazzone's description of Miranda-- that it is a rule of evidence, not a rule of interrogation.
See United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) ("The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial"), and the various opinions in Chavez v. Martinez, 538 U.S. 760 (2003) such as the plurality ("We have likewise established the Miranda exclusionary rule as a prophylactic measure to prevent violations of the right protected by the text of the Self-Incrimination Clause–the admission into evidence in criminal case of confessions obtained through coercive custodial questioning. Accordingly, Chavez’s failure to read Miranda warnings to Martinez did not violate Martinez’s constitutional rights."); Justice Kennedy ("failure to give a Miranda warning does not, without more, establish a completed violation when the unwarned interrogation ensues."); and Justice Souter (rejecting a right to sue "whenever the police fail to honor Miranda").
Of course one could take the view that these Supreme Court decisions about the scope of the Miranda right are not correct, but then one would presumably be opening up the broader debate about the correctness of the Miranda decision itself.
I can see Mr. Levinson's argument. The Court in Miranda says the following (and repeats it a few times actually): "we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation"
That seems to be saying that this is the constitutionally proper way to interrogate, and the exclusion fashioned in the same decision is the tool to enforce it. Mr. Mazzone seems to be saying the decision is all only about the tool...
The "usual" people are criticizing those like Emily Bazelon concerned about civil liberties. And, don't allow comments, so they can snark away, leaving it to Sandy Levinson to reply. I appreciate the different p.o.v., but the sneer, not so much.
Being informed of your rights is partially about guarding against trickery. Knowing your rights and there has to be some check against deprival of them (including the right to a lawyer before further questioning is given) helps there.
It is true that the evidence has to be used but the guy here is going to be prosecuted. There also is various ways your comments will "incriminate." Finally, putting aside Prof. Levinson's concerns, it should be noted that even if the person is not prosecuted, s/he has rights against mistreatment.
I like how this post was made with the same snarly tone that it decried.
"Does Prof. Mazzone think it's perfectly acceptable for corporations, for example, to do "whatever it takes" to stifle any union-organizing movements so long as they're willing to pay the (unlikely) penalty for doing so?"
Of course he never said that. Get off the high horse. Bazelon was wrong, get over it.