I too find that decision disturbing. Previously, I imagined there was no way the Court would back Attorney General Holder on his absurdly expanded vision of the emergency exception to
Miranda, but in addition to reducing liberty in its own right, this decision certainly augurs in Holder's favor; the Court is very willing to throw precedent to the wind and substantially erode Miranda (Damn you, Kennedy!).
Justice Kennedy's
majority opinion basically destroys the burden on the government to show both that the suspect understood his (Fifth Amendment) Miranda rights and that he waived them.
I had a strong premonition that Kennedy had written the opinion when I read in the LA Times article that it was a 5-4 decision revising
Miranda. After actually reading the majority opinion, however, I wonder why Roberts bothered to assign it to him:
Thomas could just as easily have written the same thing. It is only characteristically Kennedy insofar as he comes out with some new doctrine, and then claims that it is perfectly consistent with the precedent that it substantially ignores. In this case, though, I doubt even the "really" conservative justices would have had the balls to explicitly reverse parts of Miranda, so it could have been written by any of them.
Reading the facts of the case, it seems clear to me that the suspect (Thompkins), did
not waive his rights, and understood them only to free him from the necessity of answering, not to actually enable him to end the interrogation. The only evidence that he understood his rights was that he could read, and had read the Miranda warning. If that was all that was required for understanding, it would have been superfluous to specify that understanding was required in the first place. This ruling cannot be construed as anything but a further erosion of Miranda. Justice Sotomayor writes powerfully in
dissent:
The Court concludes today that a criminal suspect waives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of police interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of “waiver” must, counterintuitively, speak—and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police. Both propositions mark a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona , 384 U. S. 436 (1966) , has long provided during custodial interrogation. The broad rules the Court announces today are also troubling because they are unnecessary to decide this case, which is governed by the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. 2254(d). Because I believe Thompkins is entitled to relief under AEDPA on the ground that his statements were admitted at trial without the prosecution having carried its burden to show that he waived his right to remain silent; because longstanding principles of judicial restraint counsel leaving for another day the questions of law the Court reaches out to decide; and because the Court’s answers to those questions do not result from a faithful application of our prior decisions, I respectfully dissent.
[...]
Rarely do this Court’s precedents provide clearly established law so closely on point with the facts of a particular case. Together, Miranda and Butler establish that a court “must presume that a defendant did not waive his right[s]”; the prosecution bears a “heavy burden” in attempting to demonstrate waiver; the fact of a “lengthy interrogation” prior to obtaining statements is “strong evidence” against a finding of valid waiver; “mere silence” in response to questioning is “not enough”; and waiver may not be presumed “simply from the fact that a confession was in fact eventually obtained.” Miranda, supra, at 475–476; Butler, supra, at 372–373.3
The only reassuring part of Berghuis v. Thompkins is that Sotomayor wrote the dissent, and in no uncertain terms. That makes me feel slightly more charitable toward Obama (though, realistically, Sotomayor was nominated in May '09, when Obama had not yet fully discovered his "inner Yoo").
The same majority might very well be willing to perversely construe the Constitution to protect the privacy not of the citizens, but of the State, in upholding these interpretations of wiretap law.
Yowch! There were 105 comments when I started this post; now there are 733. For all of the apologists who have now responded to the parent, as Sotomayor writes in the dissent (which you should all read!), the reason this decision is important is that "[i]n the 16 years since Davis was decided, ample evidence has accrued that criminal suspects often use equivocal or colloquial language in attempting to invoke their right to silence." This decision may not affect you and me, who are fully aware of our constitutional rights (though a few of the responses cast that assumption in some doubt), but most criminal suspects are poor and poorly educated, have not had the benefit of a university education (or even a high school one), and certainly have not read widely on the current state of constitutional law (the last condition, unfortunately, seems to generally obtain among police officers as well). The full implications of the Fifth Amendment, as determined by the Supreme Court, are unknown to them.
As for Miranda itself, the reasoning behind it was that custodial police interrogation was inherently coercive (even when not blatantly coercive), and therefore usually inadmissible. Miranda provided a formula that the police to follow to magically de-coercify their interrogations (requiring suspects to explicitly waive Fifth Amendment protections). Miranda did not just require the warning itself, the warning was there to establish that suspects understood what rights they were waiving. It actually helped the police in some ways, because before the decision the admissibility of any confession could be challenged on the grounds that the interrogation was coercive, and many confessions were thrown out. The confession of a Mirandized suspect who has explicitly waived his rights cannot be thrown out; Miranda provided the kind of "bright line rule" that simplifies the application of the law.
To be sure, the three justices in full dissent with Miranda felt that it was drawing the line too far in the suspects' favor; ignorance of the Fifth Amendment serves the interests of the State well. Justice Harlan wrote, "[t]he aim, in short, is toward "voluntariness" in a utopian sense, or, to view it from a different angle, voluntariness with a vengeance." History, however, has arguably vindicated that "utopian" goal by fully incorporating it into the national culture without a concomitant collapse of the criminal justice system.
