The Supreme Court handed down a 5-4 ruling today (Berghuis v. Thompkins) saying that people under arrest must claim their right to remain silent in order for it to be enacted, much as they must request a lawyer in order to access the right to representation. Some see this as an assault on defendant rights and civil liberties, one of the principle legacies of the Warren Court.
Is it? New justice Sonia Sotamayor believes so, as she laid out in her spirited dissent (pdf - dissent starts on page 24):
Criminal suspects…will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.
The ruling seems to be common sense: No one is forced to speak, but to end an interrogation, the person being questioned must say that he or she is choosing to remain silent. After that, the police can no longer pursue questioning.
But the ruling is not a nod to common sense, but rather a move away from defendant rights. What it does, essentially, is create a new requirement for people being questioned by the police, putting the responsibility on the individual rather than the state to assert a right. Therefore, it requires people to be aware that such is their responsibility. Who’s least likely to be aware of this responsibility? The poor, the undereducated—i.e., the people most likely to be arrested in the first place, and those who make up the highest proportion of prison populations.
At the very least, this change should require a change to the Miranda warning, one that requires the police to spell out what a person charged with a crime must do in order to stop an interrogation, access legal counsel, etc. Will such a change occur? At the moment, it seems unlikely. The Warren Court protections of defendant rights, which include Griffin v. Illinois (1956), Gideon v. Wainwright (1963), and Miranda v. Arizona (1966), have been under assault on the national level since at least 1968, when Richard Nixon’s “law and order” campaign posed the protection of defendant rights as the coddling of criminals. The attacks would continue under Reagan, best embodied by the Willie Horton commercial, which is often analyzed for its racist implications but is as important for its portrayal of Democrats as soft on crime.
The rollback of the Warren Court rulings is increasingly important because the number of Americans in prison has exploded since 1980, reaching 7 million in 2006. According to the Washington Post, that’s one in every 32 Americans in prison, giving the U.S. the highest incarceration rate in the world.
With so many Americans facing arrest and imprisonment, as a nation we have a responsibility to ensure that everyone understands their rights and responsibilities, and must err on the side of protection rather than restriction. Incarceration, after all, takes away the most fundamental of rights—freedom—and as such defendant rights require the most stringent safeguards.