Published on CNN.com.
Tuesday’s Supreme Court decision in Berghuis v. Thompkins—holding that, after being informed of their rights, suspects must explicitly tell police that they want to stay silent to invoke their Miranda protections—indeed turns Miranda “upside down,” as one dissenting justice put it.
Its potential consequences are as predictable as night following day: Police will interrogate criminal suspects who do not explicitly invoke their rights—often, those will be suspects who are unsophisticated, poorly educated or mentally ill—for hours on end. This will lead, just as inevitably, to more coerced—and therefore unreliable—confessions. And this will result in wrongful incarceration and diminish our collective security. This is the very phenomenon that Miranda aimed to eliminate.
To be sure, the ruling is a setback for the protections designed to ensure an effective criminal justice system (Miranda requires police officers to inform suspects of the right to remain silent and the right to an attorney).
But there is one silver lining in Berghuis’ cloud: The ruling demonstrates that the Supreme Court is not shy about curtailing Miranda protections, even without prodding from Congress. Hence the ruling should derail Congress’ recent calls to enact an unnecessary, likely overbroad and possibly unconstitutional statute further restricting Miranda’s requirements.
The issue arose when Attorney General Eric Holder, among others, called on lawmakers to step in and limit Miranda by expanding the “public safety exception.” That exception allows law enforcement officials to interrogate suspected terrorists for a limited time before advising them of their Miranda rights—if the officers are “reasonably prompted by a concern for public safety.”
But this call for codifying has always been somewhat baffling, as it is so clearly not needed. Expanding of the public safety exception legislatively may score political points for lawmakers or government officials bent on appearing tough on terrorism, but such action would not improve the efficacy of our counterterrorism policy.
In fact, the public safety exception in its current form has proved extremely effective in allowing law enforcement the necessary flexibility in questioning terror suspects.
Continue reading here.