Amid the election-year push to get tough on crime and appoint judges who will "put criminals away," it has become unfashionable to speak of the rights of the accused. From O.J. Simpson to Timothy McVeigh to the Unabomber, the cry is for vengeance. Indeed, in a country where the constitutional protections of the rights of the accused have advanced beyond those of any other nation, the public views these rights skeptically, even cynically.
The complaint is not new. It began at least 30 years ago in one of the Supreme Court's most famous or, depending on your view, infamous rulings: Miranda vs. Arizona.
In that case, 23-year-old Ernesto Miranda, an uneducated and unemployed laborer, was taken into custody on a charge of rape and kidnapping. In a police lineup, Miranda was identified by the victim as the man who raped her. The police then took the accused into an interrogation room for questioning. He initially claimed he was innocent. Then, after two hours, he confessed in writing to the crime. Miranda was found guilty by a jury. Case closed. Vengeance achieved. All was well in the land.
However, by the time the case was appealed to the Supreme Court, it had become not a quarrel over the facts but rather a fundamental investigation into the nature of criminal confessions.
Prior to Miranda, an accused person had little protection when in the state's custody. To extract confessions, the police could and did treat some suspects--namely poor people of color--in abusive ways.
In Miranda, the court held that state custody was unique, "carrying its own badge of intimidation," and potentially at odds with the 5th Amendment privilege against self-incrimination: We cannot be compelled to make statements that may be used against us at a later time. Recognizing the coercive power of the state, the court also held that an accused person must be informed of the privilege before waiving it.
The Miranda case established warnings that every arresting officer recites:
1) You have the right to remain silent.
2) Anything you say can and will be used against you in a court of law.
3) You have the right to talk to a lawyer and to have him/her present while you are being questioned.
4) If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.
When Miranda was handed down, it became the focus of a bitter controversy. In 1966, critics of the Warren court, like critics of the judiciary today, accused the justices of being soft on crime. National politicians, like their counterparts today, campaigned against judges whose decisions, they said, prevented the police from locking up dangerous criminals.
In hindsight, these arguments seem absurd. The Miranda decision does not require that a person taken into custody have a lawyer present before waiving the right. It does not prevent the police from conducting an at-the-scene investigation. It does not prevent the police from acting on any statement without giving the warning. It does not even preclude the police from seeking a waiver from a suspect without a lawyer present.
In short, the Miranda decision does not handcuff the police. It provides the police tremendous latitude and requires merely that they perform their jobs professionally. In many jurisdictions, arrest and conviction rates improved.
Now the rights of the accused are once again threatened. Five years ago, in another Arizona case, the court ruled that "coerced confessions" were admissible at trial so long as the coercion was "harmless." Some lower courts have also chipped away at Miranda, and politicians once again ask us to ignore the rights of the accused.
But we should not. Amid the murders and the bombings, acts of inhumanity that stagger the soul, it is often hard to believe in the principle of individual rights. It is hard to remember that the nearly absolute power of the state must be monitored. It is hard to hold on to the values embedded in the Constitution. But we must.
Those values are at the core of the American condition; they are essential to who and what we are. What good does it do to jail a few suspects if by doing so we lose our collective identity?
Granted, a society has every right to protect itself. But in our desire for vengeance, we should not sacrifice the rights of the accused, for they are our rights as well. We should stand in favor of the rights of even the most despicable suspect.
Only in that spirit can we truly honor the court's courage in Miranda vs. Arizona.