Miranda's mistake.

• Author: Stuntz, William J.

The oddest thing about Miranda(1) is its politics -- a point reinforced by the decision in, and the reaction to, Dickerson v. United States.(2) In Dickerson, the Supreme Court faced the question whether Miranda ought to be overturned, either directly or by permitting legislative overrides. The lawyers,(3) the literature,(4) and the Court(5) split along right-left -- or, in the Court's case, right-center -- lines, with the right seeking to do away with Miranda's restrictions on police questioning, and the left (or center) seeking to maintain them.

The split is familiar. Reactions to Miranda have always divided along ideological lines, with the right arguing that it handcuffs the police,(6) and the left arguing that it offers needed protection to otherwise helpless suspects.(7) For the past generation, Miranda, the exclusionary rule, and the death penalty have formed the criminal justice system's trilogy of ideological markers, issues that separated the true believers of one side from the true believers of the other. To be sure, the left's embrace of Miranda has always been half-hearted, tinged with disappointment that Earl Warren's opinion did not go farther and ban uncounseled questioning altogether.(8) But whenever Miranda has been seriously challenged, those who believe in protecting criminal suspects' interests have rallied to its defense, on the Court and in the law reviews. The success of that defense in Dickerson -- written by the Chief Justice, no less -- seems to show that, in this area at least, the left has won the day, leaving the right carping from the sidelines.

So what is strange about this picture? One answer is that left and right have it backward. Miranda imposes only the slightest of costs on the police, and its existence may well forestall more serious, and more successful, regulation of police questioning. The right should therefore be either indifferent to Miranda or supportive of it. Meanwhile, Miranda does nothing to protect suspects against abusive police tactics. The left should therefore be its enemy, and should rejoice at the prospect of seeing it fall, since anything that took its place would likely be an improvement.

Another, better answer is that Miranda should attract support from neither right nor left. Its effects are probably small, perhaps vanishingly so. But what effects it has are probably perverse -- a conclusion that holds, oddly enough, no matter which side of the left-right divide one is on. The general reaction to the Court's decision in Dickerson, in the press and in the great majority of conversations among lawyers and law students, was celebration; listening to those conversations, one had the sense that the criminal justice system had dodged a constitutional bullet. The reaction is misplaced. Dickerson represents not a bullet dodged but an opportunity missed. As things stand now, from almost any plausible set of premises, police interrogation is badly regulated. Because of Dickerson, it will continue to be badly regulated for a long time to come.

The reason has to do with Miranda's regulatory strategy. The essence of that strategy was to shift, from courts to suspects, the burden of separating good police interrogation from bad. Instead of courts deciding based on all the circumstances (or at least all the circumstances disclosed during the suppression hearing) whether the suspect's confession was voluntary, Miranda left it for suspects to decide, by either agreeing to talk or by calling a halt to questioning and/or calling for the help of a lawyer, whether the police were behaving too coercively. A growing literature on the empirics of police questioning shows why that strategy has failed. Suspects do not, in fact, separate good questioning from bad; once suspects agree to talk to police, they almost never call a halt to questioning or invoke their right to have the assistance of counsel. Instead, suspects separate themselves, not the police, into two categories: talkative and quiet. The sorting says nothing at all about the police, because it happens before police questioning has begun, hence before any police coercion has begun. Rather, the sorting is a signal of the suspect's savvy and experience. Because of Miranda, sophisticated suspects have a right to be free from questioning altogether -- not simply free from coercive questioning -- while unsophisticated suspects have very nearly no protection at all. The first group receives more than it deserves, while the second receives less than it needs.

This problem is hard to solve without introducing distributive unfairness into a system that already has too much of it. Any system that separates good police interrogation from bad will tend to benefit some suspects, by making it a little harder for police to get confessions from those suspects, relative to others. The winners in this regulatory game are likely to be the savvy suspects, the ones who have the most sophisticated understanding of their situation, and who can therefore best manipulate the system to their benefit. These savvy suspects are in turn likely to be defined by either wealth or experience -- meaning experience dealing with the system, something that recidivists naturally possess. The most vulnerable suspects, which includes those with the least experience dealing with the system, are helped, if at all, only indirectly.

In distributive terms, the best system is probably one in which everyone talks -- or, at the least, one in which everyone submits to questioning -- but where police tactics are effectively regulated. Miranda reversed that outcome, leaving only some suspects exposed to questioning but also leaving police tactics unregulated. In other words, Miranda's mistake was to sort suspects rather than police tactics. It may be impossible to sort police tactics without sorting suspects, but we could at least try. We could, for example, take away the Miranda right to be free from questioning (though not the Fifth Amendment right not to answer(9)), and thereby put all suspects on a more level playing field; the only way to regulate police tactics would then be to look hard at them, case by case, with the aid of video- and audiotape. That approach might not work; it might be that regulating police interrogation fairly and cost-effectively is impossible. For now, we cannot know. That is the real cost of Miranda -- a bad regulatory scheme removed all possibility of developing a good one, a state of affairs that Dickerson ensures will continue.

Part I of this Essay describes the regulatory problem Miranda doctrine seems designed to solve. Part II explains why the solution has unraveled. Part III explores the distributive consequences of the unraveling.

1. VOLUNTARINESS' PROBLEM, MIRANDA'S SOLUTION

   As always, how one defines the problem matters a great deal. And defining the problem with the old voluntariness standard, the regime that Miranda replaced, was and is hard. The simplest definition is this: Police interrogation is bad; hence, any body of law that permits much police interrogation is bad, and the voluntariness standard permitted a lot of police interrogation. This view makes sense on either of two assumptions. First, suppose that the government should be able to use self-incriminating statements only if those statements are the product of a rational, informed, unpressured choice. It follows that police interrogation ought to be abolished, or close to it, since its nature is to convince suspects to give the police for free that which they could sell in the course of plea negotiations. Rational, informed, unpressured suspects will rarely make that choice.(10) Second, suppose that police should never use nondefensive violence, threats, or deceit (both active and passive) on criminal suspects, nor should they take advantage of suspects' ignorance or emotional vulnerability. That list of don'ts goes far toward exhausting the list of ways in which police obtain incriminating statements from suspects.(11) If all those tactics are improper (for whatever set of reasons), then police interrogation is itself improper and again should be abolished, or nearly so. Most criminal procedure teachers probably embrace at least one of these assumptions. The Miranda majority may have embraced both.

   If one starts from either of these assumptions, the problem with voluntariness is obvious: It permits too much interrogation. How much is too much? Any nontrivial amount. What is the solution? Adopt a set of rules that will either forbid police interrogation altogether, or that will forbid it save for a small exception for a few unusually thoughtful confessions. Crafting such rules is not hard. The ACLU's Miranda brief offered a rule that would ban police interrogation, at least in practice: Abolish all uncounseled questioning.(12) By requiring the presence of defense counsel, that rule would have converted all police interrogation into a species of plea negotiation, and since the police cannot negotiate pleas, that would mean the end of police interrogation. Earl Warren's opinion for the Court in Miranda offered a set of rules that would almost-but-not-quite abolish police interrogation: Tell suspects that they have a right not to talk and that talking is unwise (as the TV shows put it, "anything you say can and will be used against you in a court of law"),(13) and place a heavy burden on the government to prove that anyone who talks notwithstanding these warnings did so knowingly and intelligently.(14) No one can know for sure what Warren and his colleagues expected those rules to produce, but their natural outcome seems to be a very few station-house confessions by a very few unusual suspects. (That isn't what happened, of course, but the divergence is probably due to the fact that Warren's "heavy burden" waiver standard was never really applied.(15))

   Other rules might accomplish much the same thing. The law could bar post-arrest questioning by any...