07-May-2013

Boston Bombing Reopens the Miranda Debate

By Shane Krauser

The April 19 arrest of Boston Marathon Bombing suspect Dzhokhar Tsarnaev has brought the Miranda warnings to the forefront of the national debate. The ACLU has already cried foul, because Tsarnaev was not read his Miranda rights upon his arrest.

In not reading the suspect his rights, the Justice Department was relying on what is known as the public safety exception, which was outlined by the U.S. Supreme Court in U.S. v. Quarles in 1984 and further amplified by the doctrine surrounding those classified as “enemy combatants.” The public safety exception allows officers to ask questions of the suspect to assist in dissipating an imminent threat. For example, an individual who had just committed a homicide and was caught minutes later could constitute a threat deemed to be imminent. As a result, questions about the whereabouts of the weapon used are permissible without risking suppression of the statements.

On April 15, Boston was hit with an unspeakable tragedy. Four days later, Tsarnaev was arrested as one of two primary suspects. Granted, at the time of his arrest, a threat would certainly exist. When dealing with violent criminals, threats are virtually perpetual, but that doesn’t make the threat imminent. It is clear that the bombers, whoever they were, wanted to cause mass casualties. However, there were no other bombings or violent acts on a scale indicating any ties with the Boston bombers for days. If law enforcement can still deem these circumstances an “imminent” threat, the Justice Department’s policy eliminates the Miranda rule altogether, and it begs the question why the public safety exception should exist in the first place. More than that, it calls into question the necessity of the reading of Miranda rights altogether, given what the text of the Constitution actually requires.

The practice of reading Miranda rights to suspects upon arrest came about as the result of the 1966 Supreme Court case Miranda v. Arizona. The warning is meant to remind the arrested of his or her constitutional rights under the Fifth Amendment. The language of the Fifth Amendment does not require the reading of the Miranda warnings, but the Miranda Court required the warnings be read during custodial interrogation. If the warnings are not read, any confession is deemed involuntary. Creating more confusion surrounding the issue, in 1984, the Court created the public safety exception to that rule.

In 2010, the Justice Department’s drafted a policy memo to the FBI making it clear that the FBI should use “broad interpretation of the public safety exception” and allowing them to sidestep the rule for purposes of intelligence gathering. As we see now in the case of the Boston bombing suspect, the elasticity of the exception seems to be swallowing the rule.

In the wake of last week’s tragedy in Boston, we are once again confronted with the broader issue of why law enforcement should even be required to read the Miranda warnings to suspects upon arrest. The Fifth Amendment outlines that “no person … shall be compelled in any criminal case to be a witness against himself.”

Yet for some reason we are to believe that reading Miranda warnings stops police from committing abuses. The reality is that the reading of a few magical words doesn’t even remotely eliminate coercion. We are also to believe that anytime the police interface with suspects in a custodial environment, inherent coercion exists, which can only be eliminated by officers reading from a Miranda card. 

So, let’s get this straight. This country existed for nearly 200 years leading up to the 1966 Miranda decision, regularly extracted confessions without informing suspects of their rights, and did so in what the Court now calls an inherently coercive environment? Such a notion defies reason and common sense, and the slippery slope begins. Because now, apparently the Quarles Court justifies a public safety exception to the Miranda rule that allows a person in an inherently coercive environment to give information that may be used against him. Quite simply, there is no “inherent coercion” in a custodial setting – only interrogation tactics that you and I may disagree with.

Let’s get back to the original meaning of the Fifth Amendment and discontinue the confusion that comes with Miranda. Suspects have a right not to be coerced. They do not have a right to have the government remind them of their liberties. Are the Miranda warnings good policy? Maybe. That does not mean they should be constitutionally mandated.

There should be no sympathy for Tsarnaev. However, let’s quit playing games with his liberties. Let’s defend against involuntary confessions and stop maneuvering through exceptions that have nothing to do with the freedom of suspects guaranteed by the Constitution.

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