Time to Overhaul Miranda?
On June 26, 2000, the United States Supreme Court handed down its decision in Dickerson v. United States. Over the blistering dissent of Justices Scalia and Thomas, a majority of the Court agreed that a voluntary confession of an accused bank robber had to be suppressed merely because prosecutors had failed to prove that he had not been given his Miranda warnings. [For the majority and dissenting opinions in Dickerson, click here.]
A number of commentators have been highly critical of the Court's decision, because it both blocks Congress from acting in areas within its authority and will lead to guilty criminals escaping justice. [For editorial commentary on Dickerson, click here.]
This webpage contains background and source documents on the Dickerson case, which may be of interest to those who want more information about the opinion.
On April 19, 2000, the United States Supreme Court heard oral arguments in Dickerson v. United States. [For a copy of the oral argument transcript, click here]. The case presented the question of a whether a voluntary confession can be suppressed from the trial merely because police have in some way deviated from the warnings specified in Miranda v. Arizona, the Supreme Court's well-known 1966 decision. [For a copy of the Supreme Court's opinion in Miranda, click here.] [To listen to the Supreme Court's oral argument in the Miranda case, click here.]
In 1968, Congress passed a law known as 18 U.S.C. 3501. This law directs courts to consider all factors, including whether Miranda warnings were given, in deciding whether a confession is voluntary and therefore admissible in federal court. [For the full text of section 3501, click here].
In the Dickerson case, accused bank robber Charles Dickerson challenged the constitutionality of section 3501. He argued that the Constitution requires that a confession be suppressed whenever there is any deviation from the Miranda, even if the confession is voluntarily given. [For a copy of Mr. Dickerson's merits brief, click here.] In one of the most curious developments in the case, the Department of Justice joined Dickerson and filed its own brief attacking section 3501 as unconstitutional. [For a copy of the Department's merits brief, click here.]
After the Department of Justice filed its brief with the Court, Senators Hatch and Thurmond wrote to the Department to express their concern about the assertion in the brief that "federal law enforcement agencies have concluded that the Miranda decision itself generally does not hinder their investigations." The Senators observed that they had received information that the Drug Enforcement Administration had reached the opposite conclusion, a fact not revealed in the Department's brief. [For a copy of the Senators letter about the impact of Miranda on federal law enforcement agencies, click here.] Senator Thurmond also took to the floor of the Senate to express this concern. [For a copy of Senator Thurmond's Senate floor speech, click here.]
Immediately after the Senators expressed their concern, the Department of Justice agreed to release documents from federal law enforcement agencies about the effects of Miranda and lodge them with the Court. [For a copy of Solicitor General Waxman's letter to the Court, click here.] The lodged materials came from a number of federal agencies. [For a list of the lodged materials, click here.] Buried at the end of the lodging were three memos from the Drug Enforcement Administration. As Senators Hatch and Thurmond had indicated, these memos indicated that the DEA had suffered serious harms from Miranda. In an undated memo apparently written in 1998 by the DEA's Deputy Chief Counsel, the DEA explained that it was in favor of the Department attempting to obtain a favorable ruling on section 3501. [For a copy of the letter from DEA Deputy Chief Counsel, click here.] In a memo dated October 13, 1999, the DEA's Chief of Operations reported that the agency's experience "highlight[s] the need to reform the formal, prophylactic requirements of Miranda." [For a copy of the letter from the DEA's Chief of Operations, click here.] Finally, in a letter dated February 22, 2000 (just two days before the Department's lodging with the Court and after the request from Senators Hatch and Thurmond), a memo from the DEA's general counsel attempted to "clarify" some of the statements made in the earlier memos. [For a copy of the letter from the DEA Chief Counsel, click here.] The FBI's General Counsel also indicated in a memo that it has suffered harm from Miranda. [For a copy of the letter from the FBI General Counsel, click here.]
After these materials were lodged, Senators Hatch and Thurmond wrote to the Department noting that these new lodged materials raised serious concerns about the candor of the Department to the Supreme Court. [For a copy of the Senators' letter about the candor of the Department, click here.]
Because of the unique procedural posture of the case (with both parties attacking the constitutionality of an Act of Congress), the Supreme Court appointed me to defend the decision of the court below that upheld the statute. On March 9, 2000, I filed a brief supporting the statute, with the assistance of counsel at the Washington Legal Foundation. My brief argued that Section 3501 validly directs that voluntary confessions shall be admitted in evidence, even where there is some technical departure from the Miranda rules. [For a copy of the Cassell brief, click here.]
My position was supported by one of the largest collections of law enforcement and crime victims groups ever to file briefs in the United States Supreme Court. Briefs supporting the statute were filed by:
The United States House of Representatives;
Senator Hatch and many of his colleagues [for a copy of the Senators' brief, click here];
Former Attorneys General William Barr and Edwin Meese; [for a copy of Barr/Meese brief, click here]
The National District Attorneys Association and many state prosecutors associations [for a copy of the NDAA brief, click here];
The FBI Agents Association [for a copy of the FBIAA brief, click here];
The National Association of Police Organizations, the International Brotherhood of Police Offices and the Federal Law Enforcement Officers Association [for a copy of the NAPO brief, click here];
The Fraternal Order of Police [for a copy of the FOP brief, click here];
Americans for Effective Law Enforcement, International Association Chiefs of Police, and the National Sheriffs' Association [for a copy of the AELF brief, click here];
South Carolina and sixteen other states [for a copy of the States' brief, click here];
The Criminal Justice Legal Foundation [for a copy of the CJLF brief, click here];
The Maricopa County District Attorneys Office [for a copy of the Maricopa County brief, click here];
The Center for the Community Interest, Parents of Murdered Children and several other crime victims groups [for a copy of the CCI brief, click here];
Arizona Voices for Victims and several other crime victims groups [for a copy of the Arizona Voices brief, click here];
Citizens for Law and Order and the Doris Tate Foundation;
The law firm of Manning & Marder, Kass, Ellrod, Ramirez [for the Manning and Marder brief, click here]; and
The Center for the Original Intent of the Constitution [for a copy of the Original Intent brief, click here].
Replies briefs to these briefs were filed by Mr. Dickerson and the Department of Justice. [For a copy of Mr. Dickerson's reply brief, click here.] [For a copy of the Departments's reply brief, click here].
One of the statement's contained in the reply brief of the Department of Justice was that between 1989 and 1999, "according to the Justice Department's records, federal courts suppressed approximately 78 statements under Miranda - i.e., one out of every 9,300 federal prosecutions." Reply Br. for the U.S. at 17-18. A few days after Department's brief was filed, Senators Orrin Hatch and Strom Thurmond sent a letter to Attorney General (with a copy to the Supreme Court) challenging the accuracy of those figures. The Senators letter included more than 80 additional cases of statements suppressed under Miranda that were not included in the Department's calculations and explained how the Department's representations were seriously misleading. [For a copy of the letter from Senators Hatch and Thurmond, click here.] Two days letter, the Solicitor General sent a letter to the Supreme Court agreeing that dozens of the cases identified by the Senators were not included in their calculations. [For a copy of the letter from Solicitor General Waxman to the Court, click here.]
A bit of background about how the Dickerson case arrived at the Supreme Court may be useful. [For a "factsheet" about Dickerson, click here.] The Dickerson case originated after Charles Dickeson was questioned about his involvement in a string of armed bank robberies in northern Virginia. Dickerson made voluntary, incriminating statements about his involvement. The district court, while finding those statements to have been voluntarily given, nonetheless suppressed those statements because, in its view, Dickerson had received his Miranda warnings only after giving those statements.
In 1997, career federal prosecutors appealed that decision to the United States Court of Appeals for the Fourth Circuit, in Richmond, Virginia. The Washington Legal Foundation, a Washington, D.C.-based public policy organization concerned about the rights of crime victims, filed a "friend of the court" brief in the case as well. [For more information about WLF, click here.] The brief filed by WLF in the Fourth Circuit explained that the Miranda requirements are not constitutional rights, but rather mere safeguards promulgated by the Supreme Court. As a result, it is up to Congress to decide whether to keep them for federal cases. In passing section 3501, the WLF brief concluded, Congress has replaced these rules with its own alternative approach to admitting confessions in federal courts. [For WLF's Fourth Circuit brief, click here]. The WLF brief in the Fourth Circuit relied on a longer brief WLF filed in an earlier case in the Fourth Circuit known as United States v. Leong. [For WLF's brief in Leong, click here]
WLF was forced to defend section 3501 because in 1997 political appointees in the Department of Justice, overruling advice of career prosecutors, took the position that the statute could not be defended. Indeed, one 18 year veteran of the Department of Justice who was working on the case resigned in protest over the Department's politically-driven position. [For a copy of Asst. U.S. Attorney Bill Otis' letter protesting the Department's position, click here]. This new position of the current Department of Justice is at odds with long-standing Department of Justice policy. As long ago as 1969, Attorney General John Mitchell instructed Department of Justice lawyers to defend the statute. Until 1997, Department of Justice lawyers have repeatedly taken the view that the statute is constitutional. A comprehensive review of the history surrounding the statute is found in a recent article by Professor Paul Cassell entitled "The Statute that Time Forgot." [For a copy of the article, click here.] I also testified about how this new position of the administration raises serious questions of separation of powers before a subcommittee of the Senate Judiciary Committee on May 13,1999. [For a copy of Paul Cassell's testimony criticizing the justice Department's failure to enforce section 3501, click here] The Department's position, however, has been defended by Professor George Thomas. [For a copy of George Thomas' testimony defending the Department, click here]
Members of Congress have been greatly concerned that the current Justice Department did not do more to defend the statute. In 1997, the Chairman of the Senate Judiciary Committee and several of his colleagues wrote to the Attorney General urging her to enforce the law. [For the 1997 Hatch letter, click here.] More recently, in 1999, the Chairman again wrote to the Attorney General seeking enforcement of the law, noting the Fourth Circuit's opinion upholding the law in Dickerson. [For the 1999 Hatch letter, click here.] These efforts were unavailing.
On February 8, 1999, the Fourth Circuit's announced its decision in Dickerson, which criticized the Department of Justice's recent position. The Court explained that the political appointees in the Department were "elevating law over politics" in refusing to allow career prosecutors to defend the statute. The opinion also upheld the law. The Court explained :
"Congress has the power to overrule judicially created rules of evidence and procedure that are not required by the Constitution. Thus, whether Congress has the authority to enact section 3501 turns on whether the rule set forth by the Supreme Court in Miranda is required by the Constitution. Clearly it is not. At no point did the Supreme Court in Miranda refer to the warnings as constitutional rights. . . . Since deciding Miranda, the Supreme Court has consistently referred to the Miranda warnings as . . . 'not themselves rights protected by the constitution.' We have little difficulty concluding, therefore, that section 3501, enacted at the invitation of the Supreme Court and pursuant to Congress's unquestioned power to establish the rules of procedure and evidence in the federal courts, is constitutional."
[For the Fourth's Circuit's complete opinion in Dickerson, click here.]
The Dickinson opinion was praised by a number of commentators. [For op-ed commentary on Dickinson,click here] A number of prominent law enforcement groups also praised the decision. [For police group views, click here] In addition, the National District Attorney's Asssociation supported the decision. [For NDAA's views, click here.]
Curiously, after the Fourth Circuit had upheld the law and admitted Dickerson's confession, the Department of Justice joined defendant Dickerson in asking that the case be reheard. At the request of the Fourth Circuit, WLF refiled a brief urging the Court not to rehear the case. WLF explained that rehearing the case would simply delay further review of the issue in the Unite States Supreme Court. [For WLF's brief in opposition to rehearing, click here.] On April 1, 1999, the Fourth Circuit by a vote of 8-5 agreed with WLF and refused to rehear the case.
Dickerson then petitioned the Supreme Court to review the Fourth Circuit's petition. [For a copy of Dickerson's petition, click here.] And, the Department of Justice curiously joined him in seeking review and reversal of the Fourth Circuit's decision. [For a copy of the Department's response, click here ]. The Washington Legal Foundation agreed that the case should be reviewed, but urged the Court to affirm the Fourth Circuit's decision. [For a copy of WLF's response, click here]. On December 6, 1999, the Supreme Court agreed to review the case, leading to the briefing described above. Professor Paul G. Cassell of the University of Utah College of Law argued the case, defending the decision of the Fourth Circuit. [For more information about Professor Cassell, click here.]
The Dickerson case was important because it offered the prospect of reducing the harmful effects of Miranda on law enforcement. In a series of recent articles, I have collected evidence of these harmful effects [for a short summary of these studies, click here]:
In an article in the Stanford Law Review, Professor Richard Fowles and I demonstrate that clearance rates (the rate as which police officers clear or "solve" crimes) fell immediately and dramatically after the new rules were put in place in June, 1966. Even controlling for such influences as crime rates, cops on the street, and dollars spent on police protection, there was an unique structural shift in the ability of the nation's police to solve crimes at the time of Miranda that appeared to be attributable to the Miranda requirements. [For Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 Stanford Law Review 1055 (1998), click here].
In an article in the UCLA Law Review, Brett Hayman and I collect evidence on the confession rate in Salt Lake County in 1994, when police were operating under the Miranda rules. We found that police obtained a confession or incriminating statement in only 33% of their cases, well below the rates at which confessions were obtained in this country before the Miranda rules were mandated by the Supreme Court. [For Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. Rev. 839 (1996), click here.]
In an article in the Northwestern University Law Review, I analyzed the evidence collected in around 1966 and 1967 on the effects of Miranda. These "before-and-after" studies show that confession rates fell substantially in a number of American cities. [For Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw. U.L. Rev. 387 (1996), click here.]
Justice Scalia, joined by Justice Thomas, closed his dissenting opinion in Dickerson with the following paragraph, which may serve as a suitable conclusion to this webpage:
Today's judgment converts Miranda from a milestone of judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance. In imposing its Court-made code upon the States, the original opinion at least asserted that it was demanded by the Constitution. Today's decision does not pretend that it is--and yet still asserts the right to impose it against the will of the people's representatives in Congress. Far from believing that stare decisis compels this result, I believe we cannot allow to remain on the books even a celebrated decision--especially a celebrated decision--that has come to stand for the proposition that the Supreme Court has power to impose extraconstitutional constraints upon Congress and the States. This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people. I dissent from today's decision, and, until Section 3501 is repealed, will continue to apply it in all cases where there has been a sustainable finding that the defendant's confession was voluntary.