Three Decades of Miranda:A Durable Avenue to Escape Justice

Commentary by Pete du Pont

Remember Ernesto Miranda? A 23-year-old 9th grade dropout with an arrest record, the Phoenix police picked him up back in 1963 on suspicion of kidnapping and raping an 18-year-old girl. After two hours of questioning, he voluntarily confessed to the crime.

Miranda appealed his conviction and it reached the Supreme Court, then led by Chief Justice Earl Warren. In a landmark decision, the 5-4 majority overturned Miranda's conviction on the grounds that police had not followed its newly-created rules on questioning criminal suspects.

Despite his victory, things did not go swimmingly for Miranda thereafter. Retried, he was convicted without a confession because a former girlfriend testified that he had told her about the kidnapping and rape. Paroled in 1972, Miranda was stabbed to death in a bar at age 34. Ironically, the police unsuccessfully questioned a suspect in the stabbing and he was released. No one was ever charged.

During the 1960s, the Supreme Court revolutionized the criminal justice system by carving out new rights for criminal suspects. Chief among them, as virtually every viewer of TV cop shows knows, were so-called Miranda rights. "You have the right to remain silent, anything you say can be used against you in a court of law, you are entitled to an attorney, if you cannot afford an attorney, one will be provided to you without charge."

The warning and waiver process for these rights was an extraordinary stretch of our Constitution's 5th amendment, which reads in part, "No person...shall be compelled in any criminal case to be a witness against himself." The Court admitted that there was no "overt physical coercion or patent psychological ploys" and that Miranda's confession was voluntary "in traditional terms." The reasoning was pathetic, but as Bob Woodward and Scott Armstrong explain in their book The Brethren, Warren rarely wrote his opinions; instead, he just told his law clerks how he wanted the cases to turn out.

Dissenting Justice Byron White angrily warned that "the Court's new code would markedly decrease the number of confessions...To require an express waiver by the suspect and an end to questioning whenever he demurs must heavily handicap questioning." Explains Wisconsin judge Ralph Adam Fine, Miranda's rationale was that it is bad for the police to elicit perfectly voluntary statements "unless they first do all they can to discourage the statements from being made."

Has Miranda thwarted police efforts to solve crimes? Logic says yes, and the evidence confirms it according to a careful new study by Paul Cassell and Richard Fowles, both of the University of Utah, and recently published by the National Center for Policy Analysis. They find that

Within two years of implementing the Miranda decision, the rate of criminal confessions fell about 25 percent.

The clearance rate for violent crimes also dropped 25 percent (a crime is counted as cleared when police consider it solved-even if there is no conviction).

Although these reductions may sound small, they translate into 152,000 fewer violent crimes and 357,000 fewer property crimes solved each year.

The drop has primarily been due to a decline in confessions-with half of suspects in Pittsburgh, for example, confessing to crimes pre-Miranda, compared to only a third after Miranda.
Clearance rates fell sharply all over the country immediately after Miranda, especially for crimes perpetrated by experienced criminals, and have remained at these low levels ever since. The authors conclude, "Miranda is marked as perhaps the single most damaging blow inflicted on the nation's ability to fight crime in the last half century. It is time to consider removing those shackles and regulating police interrogation in less costly ways." Videotaping police interrogations, for example, can protect the rights of the accused, insure that confessions are voluntary and still promote efficient enforcement of criminal law.

Language in the Miranda decision, necessary to get the fifth vote back in 1966, gave Congress the green light to pass legislation to overrule Miranda for federal crimes, letting prosecutors introduce any voluntary confession into court-whether or not law enforcement followed Miranda. In 1968, Congress passed such a law, little noticed at the time. After languishing for years, federal prosecutors recently employed the law, but the Clinton Justice Department put a stop to their efforts, claiming that the statute is unconstitutional, an impossible position to sustain.

And there it sits. A poorly thought-out ruling, hampering the conviction of criminals. There are better ways to insure due process for the accused. Miranda is not one of them.

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