The paths not taken: The supreme court's failures in Dickerson

Michigan Law Review

Volumn 99, Issue 5, 2001, Pages 898-940

  Cassell, Paul G ^a  

^a NONE

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EID: 0043205092     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290521     Document Type: Article

References (264)

1. United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999). For background of the litigation leading to the Fourth Circuit's decision, see Paul G. Cassell, The Statute that Time Forgot: 18 U.S.C. § 3501 and the Overhauling of Miranda, 85 IOWA L. REV. 175, 208-23 (1999).
2. I was interrupted for questions approximately sixty-two times in my thirty minute argument.
3. Dickerson v. United States, 120 S. Ct. 2326, 2329-37 (2000).
4. See 120 S. Ct. at 2332-37.
5. Id. at 2334.
6. Id. at 2337 (Scalia, J., dissenting).
7. Others in this Symposium have articulated at great length reasons for believing Dickerson does not change Miranda doctrine. See Yale Kamisar, Foreword: From Miranda to § 3501 to Dickerson to . . ., 99 MICH. L. REV. 879, 893-94 (2001) ("What has been reaffirmed, at least as far as the Chief Justice is concerned, is not the Miranda doctrine as it burst on the scene in 1966, but Miranda with all its exceptions attached . . . ."); Susan R. Klein, Identifying and (Re)formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 MICH. L. REV. 1030, 1071 (arguing that Dickerson "holds that the law is to stay exactly as it was pre-Dickerson"); George C. Thomas III, Separated at Birth but Siblings Nonetheless: Miranda and the Due Process Notice Cases, 99 MICH. L. REV. 1081, 1112 (2001) (arguing that Dickerson leaves exceptions to Miranda in place, but locating Miranda rule in the Due Process Clause); see also Charles D. Weisselberg, In the Stationhouse After Dickerson, 99 MICH. L. REV. 1121, 1162 (2001) (noting that Dickerson "left Miranda standing, but with all of the exceptions and modifications that have been crafted during the last thirty-four years"). This conclusion seems unassailable, although an intermediate appellate court from Colorado disagrees. See People v. Trujillo, 2000 WL 1862933 (Colo, App. 2000). Both the text and rationale of Dickerson require leaving the pre-Dickerson exceptions in place, as the Tennessee Supreme Court has explained in a carefully reasoned decision. See State v. Walton, 41 S.W.3d 75 (Ten. 2001) (pre-Dickerson exceptions to Miranda remain good law).
8. Others in this Symposium have articulated at great length reasons for believing Dickerson does not change Miranda doctrine. See Yale Kamisar, Foreword: From Miranda to § 3501 to Dickerson to . . ., 99 MICH. L. REV. 879, 893-94 (2001) ("What has been reaffirmed, at least as far as the Chief Justice is concerned, is not the Miranda doctrine as it burst on the scene in 1966, but Miranda with all its exceptions attached . . . ."); Susan R. Klein, Identifying and (Re)formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 MICH. L. REV. 1030, 1071 (arguing that Dickerson "holds that the law is to stay exactly as it was pre-Dickerson"); George C. Thomas III, Separated at Birth but Siblings Nonetheless: Miranda and the Due Process Notice Cases, 99 MICH. L. REV. 1081, 1112 (2001) (arguing that Dickerson leaves exceptions to Miranda in place, but locating Miranda rule in the Due Process Clause); see also Charles D. Weisselberg, In the Stationhouse After Dickerson, 99 MICH. L. REV. 1121, 1162 (2001) (noting that Dickerson "left Miranda standing, but with all of the exceptions and modifications that have been crafted during the last thirty-four years"). This conclusion seems unassailable, although an intermediate appellate court from Colorado disagrees. See People v. Trujillo, 2000 WL 1862933 (Colo, App. 2000). Both the text and rationale of Dickerson require leaving the pre-Dickerson exceptions in place, as the Tennessee Supreme Court has explained in a carefully reasoned decision. See State v. Walton, 41 S.W.3d 75 (Ten. 2001) (pre-Dickerson exceptions to Miranda remain good law).
9. Others in this Symposium have articulated at great length reasons for believing Dickerson does not change Miranda doctrine. See Yale Kamisar, Foreword: From Miranda to § 3501 to Dickerson to . . ., 99 MICH. L. REV. 879, 893-94 (2001) ("What has been reaffirmed, at least as far as the Chief Justice is concerned, is not the Miranda doctrine as it burst on the scene in 1966, but Miranda with all its exceptions attached . . . ."); Susan R. Klein, Identifying and (Re)formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 MICH. L. REV. 1030, 1071 (arguing that Dickerson "holds that the law is to stay exactly as it was pre-Dickerson"); George C. Thomas III, Separated at Birth but Siblings Nonetheless: Miranda and the Due Process Notice Cases, 99 MICH. L. REV. 1081, 1112 (2001) (arguing that Dickerson leaves exceptions to Miranda in place, but locating Miranda rule in the Due Process Clause); see also Charles D. Weisselberg, In the Stationhouse After Dickerson, 99 MICH. L. REV. 1121, 1162 (2001) (noting that Dickerson "left Miranda standing, but with all of the exceptions and modifications that have been crafted during the last thirty-four years"). This conclusion seems unassailable, although an intermediate appellate court from Colorado disagrees. See People v. Trujillo, 2000 WL 1862933 (Colo, App. 2000). Both the text and rationale of Dickerson require leaving the pre-Dickerson exceptions in place, as the Tennessee Supreme Court has explained in a carefully reasoned decision. See State v. Walton, 41 S.W.3d 75 (Ten. 2001) (pre-Dickerson exceptions to Miranda remain good law).
10. Others in this Symposium have articulated at great length reasons for believing Dickerson does not change Miranda doctrine. See Yale Kamisar, Foreword: From Miranda to § 3501 to Dickerson to . . ., 99 MICH. L. REV. 879, 893-94 (2001) ("What has been reaffirmed, at least as far as the Chief Justice is concerned, is not the Miranda doctrine as it burst on the scene in 1966, but Miranda with all its exceptions attached . . . ."); Susan R. Klein, Identifying and (Re)formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 MICH. L. REV. 1030, 1071 (arguing that Dickerson "holds that the law is to stay exactly as it was pre-Dickerson"); George C. Thomas III, Separated at Birth but Siblings Nonetheless: Miranda and the Due Process Notice Cases, 99 MICH. L. REV. 1081, 1112 (2001) (arguing that Dickerson leaves exceptions to Miranda in place, but locating Miranda rule in the Due Process Clause); see also Charles D. Weisselberg, In the Stationhouse After Dickerson, 99 MICH. L. REV. 1121, 1162 (2001) (noting that Dickerson "left Miranda standing, but with all of the exceptions and modifications that have been crafted during the last thirty-four years"). This conclusion seems unassailable, although an intermediate appellate court from Colorado disagrees. See People v. Trujillo, 2000 WL 1862933 (Colo, App. 2000). Both the text and rationale of Dickerson require leaving the pre-Dickerson exceptions in place, as the Tennessee Supreme Court has explained in a carefully reasoned decision. See State v. Walton, 41 S.W.3d 75 (Ten. 2001) (pre-Dickerson exceptions to Miranda remain good law).
11. 417 U.S. 433 (1974)
12. Id. at 444.
13. Id. at 445-446
14. See, e.g., Davis v. United States, 512 U.S. 452, 457 (1994) (noting that Miranda is "one of a series of recommended procedural safeguards" that are "not themselves rights protected by the Constitution"); Oregon v. Elstad, 470 U.S. 298, 307 & n.1(1985) (holding that "a simple failure to administer Miranda warnings is not in itself a violation of the Fifth Amendment"); New York v. Quarles, 467 U.S. 649, 655 n.5 (1984) ("[T]he failure to provide Miranda warnings in and of itself does not render a confession involuntary.").
15. See, e.g., Mahan v. Plymouth County House of Corrections, 64 F.3d 14, 17 (1st Cir. 1995); DeShawn v. Safir, 156 F.3d 340, 346 (2d Cir. 1998); Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994); United States v. Elie, 111 F.3d 1135, 1142 (4th Cir. 1997); United States v. Abrego, 141 F.3d 142, 168-70 (5th Cir. 1998), cert. denied, 119 S. Ct. 182 (1998); United States v. Davis, 919 F.2d 1181, 1186 (6th Cir. 1990), reh'g en banc denied, 1991 U.S. App. Lexis 3934; Clay v. Brown, 1998 U.S. App. Lexis 17115, reported in table format, 151 F.3d 1032 (7th Cir.); Winsett v. Washington, 130 F.3d 269, 274 (7th Cir. 1997); Warren v. City of Lincoln, 864 F.2d 1436, 1441-42 (8th Cir. 1989) (en banc), cert. denied, 490 U.S. 1091 (1989); United States v. Lemon, 550 F.2d 467, 472-73 (9th Cir. 1977); Lucero v. Gunter, 17 F.3d 1347, 1350-51 (10th Cir. 1994); Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir. 1976).
16. Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 MICH. L. REV. 929, 970 (1995) [hereinafter Kamisar, "Fruits"] ("According to a majority of the present Court, [failure to follow Miranda] does not seem to violate a constitutional right at all."). In a more detailed discussion of these issues, Kamisar explained (accurately, it turns out!) why Miranda nonetheless has constitutional foundations. See Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 CORNELL L. REV. 883, 936-50 (2000) [hereinafter Kamisar, Congress].
17. Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 MICH. L. REV. 929, 970 (1995) [hereinafter Kamisar, "Fruits"] ("According to a majority of the present Court, [failure to follow Miranda] does not seem to violate a constitutional right at all."). In a more detailed discussion of these issues, Kamisar explained (accurately, it turns out!) why Miranda nonetheless has constitutional foundations. See Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 CORNELL L. REV. 883, 936-50 (2000) [hereinafter Kamisar, Congress].
18. Dickerson v. United States, 120 S. Ct. 2326, 2335 (2000).
19. Id.
20. See, e.g., Kamisar, supra note 7, at 895 ("I usually discount criticism of a case when made by losing counsel, but this time I am sympathetic when Paul Cassell complains [about] the 'skimpy, jerry-built opinion....'"); Klein, supra note 7, at 1071 (characterizing the "terrible" Dickerson opinion as a "squandered opportunity to rationalize contradictory case law."); David A. Strauss, Miranda, the Constitution, and Congress, 99 MICH. L. REV. 958, 958 (2001) ("It is not clear that the majority opinion ever really answered" the central questions posed in the case.);
21. see also Barry Friedman & Michael C. Dorf, Shared Constitutional Interpretation After Dickerson, N.Y.U. Law School Public Law and Legal Theory, Research Paper No. 13 (Fall 2000) (concluding "a Court brimming with its own importance has paid insufficient attention to its core obligation: to explain the basis for its decisions. That shortcoming is nowhere more obvious than in the line of post-Miranda cases culminating in Dickerson.").
22. E.g., Nardone v. United States, 308 U.S. 338, 340-43 (1939).
23. Oregon v. Elstad, 470 U.S. 298, 306 n.1 (1985).
24. 120 S. Ct. at 2335.
25. This point is pursued in more detail, and in more powerful prose, in 120 S. Ct. 2326, 2342-43 (Scalia, J., dissenting).
26. See New York v. Quarles, 467 U.S. 649, 658 n.7 (1984) (justifying holding on the ground that "absent actual coercion by the officer, there is no constitutional imperative requiring the exclusion of the evidence that results from police inquiry of this kind").
27. 120 S. Ct. at 2342 (Scalia, J., dissenting).
28. Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 89 n.212 (2000).
29. See supra note 16.
30. 521 U.S. 507 (1997).
31. Henry P. Monaghan, Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 42 (1975).
32. 403 U.S. 388 (1971).
33. 367 U.S. 643 (1961).
34. E.g., Bivens v. Six Unknown Agents, 403 U. S. 388, 391-95 (1971); Mapp v. Ohio, 367 U.S. 643, 655-60 (1961). See also Bush v. Lucas, 462 U.S. 367, 374-75 (1983) (discussing application of enforcement measures to the states).
35. The search and zure exclusionary rule is different from Miranda's exclusionary rule because it is a remedy for actual violations of the Fourth Amendment. Adopting an analogous approach in the Fifth Amendment context would mean suppressing evidence only in cases in which a defendant's constitutional right against compelled self-incrimination has actually been violated. This is precisely the approach of § 3501.
36. 462 U.S. 367 (1983).
37. Id. at 372-73, 377.
38. Id. at 368, 386-90; see also Schweiker v. Chilicky, 487 U.S. 412, 425 (1988) (remedial regime replacing judicially-devised one upheld because it contained "meaningful safeguards" for the constitutional rights at issue even though it failed to provide as "complete relief as a Bivens remedy).
39. See Smith v. Robbins, 528 U.S. 259 (2000).
40. 386 U.S. 738 (1967).
41. Smith, 528 U.S. at 273.
42. Id. at 276.
43. E.g., Connecticut v. Barrett, 479 U.S. 523, 528 (1987).
44. See infra notes 72-94 and accompanying text (discussing safeguards against coerced confessions provided by § 3501 and other measures).
45. City of Boerne v. Flores, 521 U.S. 507, 535-36 (1997).
46. Oregon v. Elstad, 470 U.S. 298, 306 (1985) (Miranda "sweeps more broadly than the Fifth Amendment itself"); Duckworth v. Eagan, 492 U.S. 195, 209 (1989) (O'Connor, J., concurring) ("[T]He Miranda rule 'overprotects' the value at stake.").
47. See Smith, 528 U.S. at 284 ("We address not what is prudent or appropriate, but only what is constitutionally compelled.") (quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)); cf. Palermo v. United States, 360 U.S. 343, 353 n.11 (1959).
48. Professor Strauss's interesting article in this Symposium takes the view that Miranda should be viewed as part and parcel of ordinary constitutional jurisprudence, akin to the interpretation of the First Amendment rights found in, for example, New York Times v. Sullivan, 376 U.S. 254 (1964). See Strauss, supra note 16, at 960-66. On this view, Strauss argues, the Court properly struck down § 3501 because it was not "as good or better" than the constitutional Miranda rules. Id. at 969-70. The difficulty with this argument from analogy, however, is that it requires a justification for analogizing Miranda to the "constitutional" interpretation exemplified by Sullivan rather than to the "prophylactic" interpretation exemplified by Bivens. If I read him correctly, Strauss fails to offer any explanation for viewing Miranda as akin to Sullivan rather than to Bivens. As I have tried to argue here, the case for the Bivens analogy is strong. Unlike the Sullivan analogy, a Bivens analogy fits both the terminology of Miranda doctrine (e.g., "prophylactic rule") and its practical effects ("overprotection" of the right, replacement by Congress, etc.). Of course, if the Bivens analogy is correct, Congress was free to replace the Miranda rule not with a rule that was, in Strauss's terms, "as good or better" than Miranda, but rather with one that satisfied the constitutional minimum. See supra notes 32-33.
49. See Brief of Court-Appointed Amicus Curiae Urging Affirmance of the Judgment Below at 4-28, United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999) (No. 99-5525). This document, and many others related to the Dickerson case, are available on my website at www.law.utah.edu/cassell [hereinafter Cassell website].
50. Professor Schulhofer's provocative contribution to this Symposium argues that all of the Justices in Dickerson share some misconception that Fifth Amendment rights during custodial police questioning are somehow distinct from "ordinary" Fifth Amendment rights. See Stephen J. Schulhofer, Miranda, Dickerson, and the Puzzling Persistence of Fifth Amendment Exceptionalism, 99 MICH. L. REV. 941 (2001). The cases Schulhofer cites for the "ordinary" principle, however, illustrate only the special point that imposing a penalty on a person for exercising the Fifth Amendment is constitutionally forbidden. See Hoffman v. United States, 341 U.S. 479 (1951) (criminal contempt); Griffin v. California, 380 U.S. 609, 614 (1965) ("[C]omment on the refusal to testify . . . is a penalty imposed by courts for exercising a constitutional privilege."); Garrity v. New Jersey, 385 U.S. 493 (1967) (penalty of loss of public employment); Gardner v. Broderick, 392 U.S. 273, 278-79 (1968) (the "privilege against self-incrimination does not tolerate the attempt . . . to coerce a waiver . . . on penalty of the loss of employment"); Brooks v. Tennessee, 406 U.S. 605, 611 (1972) (striking down rule because it "imposed a penalty for petitioner's initial silence"); Lefkowitz v. Turley, 414 U.S. 70, 83 (1973) (viewing disqualification from public contracting as an impermissible "penalty for asserting a constitutional privilege" (internal quotation omitted)); Lefkowitz v. Cunningham, 431 U.S. 801, 805-06 (1977) ("[Gjovernment cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions."); New Jersey v. Portash, 440 U.S. 450, 455-56 (1979) (explaining that the rule considered in Brooks v. Tennessee was found unconstitutional because it "imposed a penalty on the right to remain silent"); Carter v. Kentucky, 450 U.S. 288, 301 (1981) (explaining that no adverse-inference instruction must be given to jury because "the penalty" for not testifying "may be just as severe [as in Griffin] when . . . the jury is left to roam at large with only its untutored instincts to guide it . . ."), Since Schulhofer's cases reflect only a prohibition of penalizing the exercise of the privilege of silence, they provide no rational support for Schulhofer's notion that merely questioning a suspect in custody automatically violates the Fifth Amendment unless an elaborate set of protective procedures is followed. See generally JOSEPH D. GRANO, CONFESSIONS, TRUTH AND THE LAW 137-39 & n.151 (1996). Schulhofer further argues that Fifth Amendment exceptionalism is of recent origin, attributable purely to the Tucker-Elstad-Quarles lines of cases which "drain[ed] Fifth Amendment compulsion of its distinctive content" by equating it with Fourteenth Amendment voluntariness. See Schulhofer, supra, at 949-50. But Court precedent before Miranda specifically recognized the congruence of the voluntariness standard and the self-incrimination standard in the specific context of custodial questioning. See Malloy v. Hogan, 378 U.S. 1, 7 (1964) (stating that voluntariness standard and Fifth Amendment standard for admission of confessions are "the same standard"). Schulhofer also claims that the fact that Fifth Amendment precedent condemns certain practices as "impermissibly compelling per se" demonstrates that the voluntariness standard is "entirely foreign to the Court's Fifth Amendment jurisprudence . . ." Schulhofer, supra, at 947-48. But per se prohibitions were recognized under the voluntariness standard as well. See, e.g., Stein v. New York, 346 U.S. 156, 182 (1953) (holding that where suspect is threatened with violence, there "is no need to weigh or measure its effects on the will of the individual," because such confessions are "too untrustworthy to be received as evidence of guilt"). It is therefore unsurprising to find the Court's cases routinely treating compulsion under the Fifth Amendment and involuntariness as the same standard in substance. See Portash, 440 U.S. at 458-59 (treating compulsion in the Fifth Amendment sense as an interchangeable concept with coercion and involuntariness); Garrity, 385 U.S. at 495-98 (same). Of course, as a final problem, Schulhofer's position would require repudiating numerous post-Miranda cases, such as Tucker, Quarles, and Elstad. Small wonder, then, that, although he advanced this position to the Court in Dickerson, see Brief for Amicus Curiae The American Civil Liberties Union in Support of Petitioner at 7-11, Dickerson v. United States, 120 S, Ct, 2326 (2000) (No. 99-5525) (authored in part by Schulhofer), not a single Justice even nibbled on it. At least I got two votes!
51. Professor Schulhofer's provocative contribution to this Symposium argues that all of the Justices in Dickerson share some misconception that Fifth Amendment rights during custodial police questioning are somehow distinct from "ordinary" Fifth Amendment rights. See Stephen J. Schulhofer, Miranda, Dickerson, and the Puzzling Persistence of Fifth Amendment Exceptionalism, 99 MICH. L. REV. 941 (2001). The cases Schulhofer cites for the "ordinary" principle, however, illustrate only the special point that imposing a penalty on a person for exercising the Fifth Amendment is constitutionally forbidden. See Hoffman v. United States, 341 U.S. 479 (1951) (criminal contempt); Griffin v. California, 380 U.S. 609, 614 (1965) ("[C]omment on the refusal to testify . . . is a penalty imposed by courts for exercising a constitutional privilege."); Garrity v. New Jersey, 385 U.S. 493 (1967) (penalty of loss of public employment); Gardner v. Broderick, 392 U.S. 273, 278-79 (1968) (the "privilege against self-incrimination does not tolerate the attempt . . . to coerce a waiver . . . on penalty of the loss of employment"); Brooks v. Tennessee, 406 U.S. 605, 611 (1972) (striking down rule because it "imposed a penalty for petitioner's initial silence"); Lefkowitz v. Turley, 414 U.S. 70, 83 (1973) (viewing disqualification from public contracting as an impermissible "penalty for asserting a constitutional privilege" (internal quotation omitted)); Lefkowitz v. Cunningham, 431 U.S. 801, 805-06 (1977) ("[Gjovernment cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions."); New Jersey v. Portash, 440 U.S. 450, 455-56 (1979) (explaining that the rule considered in Brooks v. Tennessee was found unconstitutional because it "imposed a penalty on the right to remain silent"); Carter v. Kentucky, 450 U.S. 288, 301 (1981) (explaining that no adverse-inference instruction must be given to jury because "the penalty" for not testifying "may be just as severe [as in Griffin] when . . . the jury is left to roam at large with only its untutored instincts to guide it . . ."), Since Schulhofer's cases reflect only a prohibition of penalizing the exercise of the privilege of silence, they provide no rational support for Schulhofer's notion that merely questioning a suspect in custody automatically violates the Fifth Amendment unless an elaborate set of protective procedures is followed. See generally JOSEPH D. GRANO, CONFESSIONS, TRUTH AND THE LAW 137-39 & n.151 (1996). Schulhofer further argues that Fifth Amendment exceptionalism is of recent origin, attributable purely to the Tucker-Elstad-Quarles lines of cases which "drain[ed] Fifth Amendment compulsion of its distinctive content" by equating it with Fourteenth Amendment voluntariness. See Schulhofer, supra, at 949-50. But Court precedent before Miranda specifically recognized the congruence of the voluntariness standard and the self-incrimination standard in the specific context of custodial questioning. See Malloy v. Hogan, 378 U.S. 1, 7 (1964) (stating that voluntariness standard and Fifth Amendment standard for admission of confessions are "the same standard"). Schulhofer also claims that the fact that Fifth Amendment precedent condemns certain practices as "impermissibly compelling per se" demonstrates that the voluntariness standard is "entirely foreign to the Court's Fifth Amendment jurisprudence . . ." Schulhofer, supra, at 947-48. But per se prohibitions were recognized under the voluntariness standard as well. See, e.g., Stein v. New York, 346 U.S. 156, 182 (1953) (holding that where suspect is threatened with violence, there "is no need to weigh or measure its effects on the will of the individual," because such confessions are "too untrustworthy to be received as evidence of guilt"). It is therefore unsurprising to find the Court's cases routinely treating compulsion under the Fifth Amendment and involuntariness as the same standard in substance. See Portash, 440 U.S. at 458-59 (treating compulsion in the Fifth Amendment sense as an interchangeable concept with coercion and involuntariness); Garrity, 385 U.S. at 495-98 (same). Of course, as a final problem, Schulhofer's position would require repudiating numerous post-Miranda cases, such as Tucker, Quarles, and Elstad. Small wonder, then, that, although he advanced this position to the Court in Dickerson, see Brief for Amicus Curiae The American Civil Liberties Union in Support of Petitioner at 7-11, Dickerson v. United States, 120 S, Ct, 2326 (2000) (No. 99-5525) (authored in part by Schulhofer), not a single Justice even nibbled on it. At least I got two votes!
52. Bush v. Lucas, 462 U.S. 367, 387-90 (1983).
53. Schweiker v. Chilicky, 487 U.S. 412, 429 (1988).
54. Chilicky, 487 U.S. at 425 (quoting Bush, 462 U.S. at 389) (internal citation omitted); see also Palermo, 360 U.S. at 343, 353 n.11 (discovery rules for criminal defendants).
55. Dickerson, 120 S. Ct. at 2333 (quoting Mu'Min v. Virginia, 500 U.S. 415, 422 (1991)).
56. See supra notes 27-38 and accompanying text (discussing Mapp, Bivens, and similar cases).
57. See e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427-28 (1964).
58. See Banco Nacional de Cuba v. Farr, 383 F.2d 166, 180-81 (2d Cir. 1967), cert. denied, 390 U.S. 956 (1968). For further discussion of the act of state analogy to Miranda, see Cassell, supra note 1, at 238-39.
59. The doctrine furthers the constitutional "right to engage in interstate trade," Dennis v. Higgins, 498 U.S. 439, 448 (1991) (internal quotations omitted), by invalidating state laws that unduly burden or interfere with such commerce. The Court's decisions in this area are certainly "constitutionally based" on the Commerce Clause, but Congress is free to modify them. See, e.g., Northeast Bancorp v. Board of Governors, 472 U.S. 159, 174-75 (1985); Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421, 436 (1856).
60. 386 U.S. 18 (1967).
61. The following discussion draws heavily on the amicus brief from the Criminal Justice Legal Foundation, which presented this argument to the Court. See Brief of Amicus Criminal Justice Legal Foundation, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No. 99-5525).
62. See Chapman, 386 U.S. at 20 & n.3.
63. See Daniel Meltzer, Harmless Error and Constitutional Remedies, 61 U. CHI. L. REV. 1, 2, 24-26 (1994).
64. 386 U.S. at 24-26.
65. 386 U.S. at 21.
66. Meltzer, supra note 57, at 26 ("[T]he harmless error rule should be seen as constitutional common law.").
67. Tr. of Oral Argument at 14, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No. 99-5525) (quoting Chapman v. California, 386 U.S. 18, 21 (1967) (emphasis added)).
68. Dickerson, 120 S. Ct. at 2333 n.3 (quoting 28 U.S.C. § 2254(a)).
69. 120 S. Ct. at 2333 n.3 (emphases added).
70. See Nat'l Farmers Union Ins. Companies v. Crow Tribe of Indians, 471 U.S. 845, 850-51 (1985) (providing that federal common law as articulated in rules that are fashioned by court decisions constitutes "laws" as that term is used in 28 U.S.C. § 1331).
71. 304 U.S. 64 (1938).
72. See LARRY W. YACKLE, POST CONVICTION REMEDIES § 97, at 371 (1981 & 1996 Supp.) (concluding Miranda rules can be viewed as "federal 'law' which, under the [habeas] statute, may form the basis for habeas relief").
73. See Tr. Of Oral Argument at 15-16, Withrow v. Williams, 507 U.S. 680 (1993) (No. 91-1030). While the transcript of oral argument does not identify the justices who are speaking, I have listened to the tape and believe the justice is Justice Stevens.
74. Tr. of Oral Argument at 14-15, Withrow v. Williams, 507 U.S. 680 (1993) (No. 91-1030).
75. See Brief of the United States at 24, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No. 99-5525).
76. Curiously, in Withrow, the prisoner was represented by Seth Waxman. When Mr. Waxman became Solicitor General, he apparently directed the Department to reverse, without explanation, its earlier position.
77. Tr. of Oral Argument at 18, Withrow v. Williams, 507 U.S. 680 (1993) (No. 91-1030) (quotation marks inserted around "law").
78. 384 U.S. 436 (1966).
79. Miranda, 384 U.S. at 467.
80. See S.REP No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N 2112.
81. 18 U.S.C. § 3501 (b) (1994).
82. See Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984) (noting that Mirandized statements rarely found involuntary), quoted with approval in Dickerson, 120 S. Ct. at 2336; see also Welsh S. White, Miranda's Failure to Restrain Pernicious Interrogation Practices, 99 MICH. L. REV. 1211, 1219 (2001) (noting that a survey of cases suggests that successful challenges to Mirandized confessions are rare).
83. See Brief of Amicus Dep't of Justice, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No. 99-5525).
84. See infra note 174 (discussing FBI practice). United States v. Dickerson, 166 F.3d 66 (4th Cir. 1999).
85. United States v. Dickerson, 166 F.3d 66 (4th Cir. 1999).
86. Section 3501 also extended additional protections to suspects in at least one other way. See Cassell, supra note 1, at 243 (noting § 3501's requirement that courts consider the suspect's awareness of the nature of the charges against him, a requirement that extends further than Miranda doctrine found in Colorado v. Spring, 479 U.S. 564, 577 (1987)).
87. See generally William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L REV. 1479, 1483-1538 (1987) (courts should consider entire legal landscape in construing statutes). Several critiques of the constitutionality of § 3501 appear to suffer from the problem of analyzing the statute alone without considering the supplemental devices bolstering § 3501. See, e.g., Kamisar, Congress, supra note 13 (discussing only § 3501); Klein, supra note 7, at 1057; Strauss, supra note 16, at 969.
88. See supra notes 27-33 and accompanying text.
89. 28 U.S.C. § 2680(h)(1994).
90. See 28 C.F.R. § 0.50 (1994) (establishing Justice Department's Civil Rights Division).
91. See Brief of Court-Appointed Amicus at 28-40, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No. 99-5525). Other commentators have also raised this issue. See, e.g., Harold J. Krent, The Supreme Court as an Enforcement Agency, 55 WASH. & LEE L. REV. 1149, 1184-87, 1203-04 (1998).
92. 120 S. Ct. at 2335.
93. 468 U.S. 1032, 1044-45 (1984).
94. Miranda v. Arizona, 384 U.S. 436, 467 (1966).
95. Cf. Harris v. New York, 401 U.S. 222, 224 (1971) ("Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court's holding and cannot be regarded as controlling.").
96. See supra notes 11-13 and accompanying text.
97. 120 S. Ct. at 2337-38 (Scalia, J., dissenting).
98. 120 S. Ct. at 2335 (emphasis added) (internal citation omitted).
99. 120 S. Ct. at 2334 n.6 (emphasis added).
100. Cf. Smith v. Robbins, 120 S. Ct. 746, 759 (2000) (upholding against constitutional challenge an alternative to Anders procedure that provided protection for constitutional right at issue at least as good as contained in Anders). Bolstering this point is the congressional judgment that § 3501 would effectively secure suspects' rights, a point pursued at greater length in Part III, infra. Cf. Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v. Chilicky, 487 U.S. 412 (1987) (deferring to congressional judgments on effectiveness issues). Also, during the sixteen months § 3501 was in effect in the Fourth Circuit, it appeared that, in practice, § 3501 has indeed been at least as effective as the Miranda regime at protecting Fifth Amendment rights.
101. 521 U.S. 507 (1997).
102. See generally Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 MONT. L. REV. 249 (1995).
103. 494 U.S. 872 (1990).
104. For trenchant criticism of Boerne, see Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153 (1997).
105. Boerne, 521 U.S. at 532.
106. Id. at 520. See Kimel v. Florida Board of Regents, 120 S. Ct. 631, 644-50 (2000).
107. Kimel, 120 S. Ct. at 647.
108. Withrow v. Williams, 507 U.S. 680, 709-10 (1993) (O'Connor, J., dissenting) (citations omitted) (collecting numerous illustrations).
109. See, e.g., United States v. Green, 592 A.2d 985, 986 n.2 (D.C. 1991) (statement specifically found to be voluntary below), cert. granted, 504 U.S. 908 (1992) (No. 91-1521) and cert. dismissed, 507 U.S. 545 (1993); Oregon v. Elstad. 470 U.S. 298, 315 (1985) ("It is . . . beyond dispute that respondent's earlier [un-Mirandized] remark was voluntary."); Oregon v. Hass, 420 U.S. 714, 722 (1975) ("There is no evidence or suggestion that Hass' statements to [police] . . . were involuntary or coerced."); Michigan v. Tucker, 417 U.S. 433, 445 (1974) ("the interrogation in this case involved no compulsion sufficient to breach the right against compulsory self-incrimination").
110. Cf. Boerne, 521 U.S. at 533 (commenting favorably on the presence of such devices as a means of assuring proportionality).
111. See Kimel. 120 S. Ct. at 650.
112. See Miranda v. Arizona, 384 U.S. 436, 445-46 (1966). Interestingly, Miranda did not cite any contemporary cases in which the police had extracted a confession through threatened force. For this point, it relied on such dated information as the Wickersham Report in 1931 and a few Supreme Court cases in the 1940s and early 1950s. 384 U.S. at 445-46. Miranda went on to conclude that police coercion "is not, unfortunately, relegated to the past or to any part of the country," id. at 446, resting this assertion on a few additional isolated and dated reports. Id. The Court conceded, however, that "[t]he examples given above are undoubtedly the exception now." Id. at 447.
113. Miranda, 384 U.S. at 448.
114. See generally id. at 532-33 (White, J., dissenting).
115. Id. at 448.
116. Id. at 457.
117. Id. at 645. It is also noteworthy that both the executive and legislative branches reached their own conclusions, contemporaneously with Miranda, that coercion as traditionally understood was not pervasive in custodial interrogations. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 93 (1967) (stating, based on pre-Miranda data, that "today the third degree is almost nonexistent"); S. REP. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2134 (reviewing congressional testimony from expert witnesses on lack of coercive techniques and concluding Miranda's contrary findings were based on an "overreact[ion] to defense claims that police brutality is widespread"); see generally Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw. U. L. REV. 387, 473-78 (1996) [hereinafter Cassell, Social Costs] (collecting evidence on limited number of involuntary confessions in 1966).
118. Id. at 645. It is also noteworthy that both the executive and legislative branches reached their own conclusions, contemporaneously with Miranda, that coercion as traditionally understood was not pervasive in custodial interrogations. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 93 (1967) (stating, based on pre-Miranda data, that "today the third degree is almost nonexistent"); S. REP. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2134 (reviewing congressional testimony from expert witnesses on lack of coercive techniques and concluding Miranda's contrary findings were based on an "overreact[ion] to defense claims that police brutality is widespread"); see generally Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw. U. L. REV. 387, 473-78 (1996) [hereinafter Cassell, Social Costs] (collecting evidence on limited number of involuntary confessions in 1966).
119. Boerne, 521 U.S. at 531-32.
120. 120 S. Ct. at 3227 (Scalia, J., dissenting): see also discussion at supra note 91 and accompanying text.
121. 120 S. Ct. at 2335 (internal citation omitted).
122. See S Rep. No. 103-111, at 8 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1897 ("By lowering the level of constitutional protection for religious practices, [Smith] has created a climate in which the free exercise of religion is jeopardized.").
123. Compare Katzenbach v. Morgan, 384 U.S. 641, 649-50 (1966) (upholding congressional ban on literacy tests), with Lassiter v. Northampton County Bd. of Elections 360 U.S. 45, 51-54 (1959) (refusing to strike down literacy tests under Court's authority to enforce the Equal Protection Clause).
124. Oregon v. Elstad, 470 U.S. 298, 307 (1985).
125. Coleman v. Thompson, 501 U.S. 722, 737 (1991). Per se rules are also sometimes justified on the grounds that exceptions are not sufficiently "important to justify the time and expense necessary to identify them." Id. (internal citation omitted). This rationale has no application when considering § 3501. Congress has determined to the contrary that the judiciary should devote such additional energy as may be needed (if any) to making accurate (rather than presumptive) voluntariness determinations in federal criminal cases. Moreover, because confessions are "essential to society's compelling interest in finding, convicting, and punishing those who violate the law," Moran v. Burbine, 475 U.S. 412, 426 (1986), individualized voluntariness determinations would appear to be time well spent.
126. Coleman, 501 U.S. at 737.
127. Cf. Boerne, 521 U.S. at 519 ("Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause.").
128. Kimel v Florida Bd. of Regents, 120 S. Ct. 631, 648 (2000). See generally J. GRANO, supra note 45, at 198 (arguing that Miranda "substituted for the constitutional rule a new substantive rule of its own making").
129. 384 U.S. at 503 (Clark, J., dissenting).
130. Section 3501(a) provides that a confession "shall be admissible in evidence if it is voluntarily given" (emphasis added), implying that the presumption is against admissibility unless and until voluntariness is established. The Court, of course, has a duty to read congressional enactments so as to comply with the Constitution.
131. 462 U.S. 213 (1983).
132. Id. at 234-35 (footnote omitted).
133. Id. at 230.
134. See, e.g., Alabama v. White, 496 U.S. 325, 328 (1990).
135. Gates, 462 U.S. at 230 n.6.
136. See Developments in the Law - Confessions. 79 HARV. L. REV. 935, 1069-70 (1966) (noting majority rule that prosecution proves voluntariness and minority rule tha defendant proves involuntariness). After Miranda, the issue has been clarified, but has not been definitively resolved. Lego v. Twomey, 404 U.S. 477, 489 (1972), definitely suggests that the prosecution must prove voluntariness. See generally 3 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 10.3(c) at 429 (2d ed. 1999) (noting Lego "raises serious doubts about placing burden on defendant to prove involuntariness). But some states continue to place the burden on the defendant to show involuntariness. See, e.g., Chambers v. State, 742 So.2d 466, 468 (Fla. Dist. Ct. App. 1999).
137. See Developments in the Law - Confessions. 79 HARV. L. REV. 935, 1069-70 (1966) (noting majority rule that prosecution proves voluntariness and minority rule tha defendant proves involuntariness). After Miranda, the issue has been clarified, but has not been definitively resolved. Lego v. Twomey, 404 U.S. 477, 489 (1972), definitely suggests that the prosecution must prove voluntariness. See generally 3 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 10.3(c) at 429 (2d ed. 1999) (noting Lego "raises serious doubts about placing burden on defendant to prove involuntariness). But some states continue to place the burden on the defendant to show involuntariness. See, e.g., Chambers v. State, 742 So.2d 466, 468 (Fla. Dist. Ct. App. 1999).
138. Brief of Amicus Curiae of the Bipartisan Legal Advisory Group of the United States House of Representatives in Support of Affirmance at 15-16, Dickerson v. United States 120 S. Ct. 2326 (2000) (No. 99-5525); Brief for the States of South Carolina et al. as Amici Curiae Urging Affirmative at 5-16, Dickerson, 120 S. Ct. 2326 (2000) (No. 5525); Brief of Amicus Curiae of Senators Orrin G. Hatch et al. Urging Affirmance at 7-9, Dickerson, 120 S. Ct. 2326 (2000) (No. 99-5525).
139. Dickerson, 120 S. Ct. at 2336-37 n.8.
140. Bell v. Wolfish, 441 U.S. 520, 532 n.13 (1979) (emphasis added); see also United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60 n.2 (1981) (declining to reach issue 'since it was not raised by either of the parties here or below"); Knetsch v. United States, 364 U.S. 361, 370 (1960) (declining to reach argument that "has never been advanced by petitioners in this case").
141. See Young v. United States, 315 U.S. 257, 259 (1942) ("[T]he proper administration of the criminal law cannot be left merely to the stipulation of the parties.").
142. The Court allows greater freedom in responding to a question presented, because a respondent may, without cross-petitioning, "urge any grounds which would lend support to the judgment below," Dayton Board of Education v. Brinkman, 433 U.S. 406, 419 (1977), including "grounds different from those upon which the court below rested its judgment." McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434 (1940).
143. Presumably the House of Representatives could have intervened in Dickerson to defend the statute an action which would seem to have given it "party" status for purpose of having its arguments considered. See, e.g., Bowsher v. Synar, 478 U.S. 714 (1986); see generally, Note, Executive Discretion and the Congressional Defense of Statutes, 92 YALE L.J. 970 (1983). It truly elevates form over substance to refuse to consider the arguments by the House because they were instead presented in the form of an amicus brief.
144. I should emphasize that I in no way question stare decisis doctrine. Cf. Gary Lawson The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y. 23 (1994); Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 YALE L.J. 1535 (2000).
145. I should emphasize that I in no way question stare decisis doctrine. Cf. Gary Lawson The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y. 23 (1994); Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 YALE L.J. 1535 (2000).
146. See, e.g., Payne v. Tennessee, 501 U.S. 808 (1991).
147. Miranda, 384 U.S. at 477.
148. Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986).
149. Michael Edmund O'Neill, Undoing Miranda, 2000 BYU L. REV. 185, 281 [hereinafter O-Neill, Undoing]; see also Michael Edmund O'Neill, Miranda Remediated, 3 GREENBAG 149 (2000) [hereinafter O'Neill, Remediated].
150. Michael Edmund O'Neill, Undoing Miranda, 2000 BYU L. REV. 185, 281 [hereinafter O-Neill, Undoing]; see also Michael Edmund O'Neill, Miranda
151. Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997) (quoting Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622 (1944); accord Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 331 n.12 (1985).
152. See, e.g., Klein, supra note 7, at 1066-68 (2001) (taking this view and collecting supporting citations).
153. 120 S. Ct. 1740 (2000).
154. Id. at 1752. Nonetheless, for the majority these findings could not be given decisive weight on the ultimate question of effect on interstate commerce because "they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution's enumeration of powers." This mixed question of fact and law was, the majority concluded, for the judiciary.
155. Id. at 1760 (Souter, J., dissenting).
156. O'Neill, Undoing, supra note 140, at 210-33.
157. S. REP. NO. 90-1097, at 46 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2132.
158. See id. at 42, 45, reprinted in 1968 U.S.C.C.A.N. 2112, 2128, 2131-32.
159. Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 CORNELL L. REV. 883, 894 (2000).
160. Cf. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 558-59 (1993) (Scalia, J., concurring).
161. See Kamisar, supra note 149, at 910 (giving five reasons for disbelieving Committee's analysis on the constitutionality of § 3501).
162. Professor Kamisar does point to a "conspicuous absence of any law professors at subcommittee hearings" as one reason for not crediting the Senate Judiciary Committee's report. Id. at 902. While I am sure many of us in the academy will find merit in Kamisar's suggestion that academics are vital to congressional deliberations, this is no requirement for crediting legislative findings. Also, other defenders of Miranda did testify at the hearings. See, e.g., Controlling Crime Through More Effective Law Enforcement: Hearings Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 90th Cong. 1159 (1967) (hereinafter Controlling Crime Hearings) (statement of Vincent L. Broderick on behalf of the American Civil Liberties Union).
163. See id. at 1120-23.
164. Id. at 200-02.
165. Id. at 223.
166. Compare, e.g., Cassell, Social Costs, supra note 111, at 395-418 (using the studies as reason for findings significant harm from Miranda), with Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. REV. 500, 516-47 (1996) [hereinafter Schulhofer, Practical Effect] (reading the same studies differently).
167. Compare, e.g., Cassell, Social Costs, supra note 111, at 395-418 (using the studies as reason for findings significant harm from Miranda), with Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. REV. 500, 516-47 (1996) [hereinafter Schulhofer, Practical Effect] (reading the same studies differently).
168. 5., e.g., Rostker v. Goldberg, 453 U.S. 57, 82-83 (1981) (in evaluating the constitutionality of a statute, "[t]he District Court was quite wrong in undertaking an independent evaluation of this evidence, rather than adopting an appropriately deferential examination of Congress' evaluation of that evidence").
169. See, e.g., Cassell, supra note 1, at 208-09 (noting congressional hearings urging the Justice Department to enforce § 3501); see also infra notes 185-196 and accompanying text (noting efforts of Senators Hatch and Thurmond to support § 3501).
170. Mapp v. Ohio, 367 U.S. 643 (1961).
171. The Court claimed that the FBI had operated under similar rules, but the claim was transparently flawed. See OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, REPORT TO THE ATTORNEY GENERAL ON THE LAW OF PRETRIAL INTERROGATION 48-49 (1986), reprinted in 22 MICH. J.L. REFORM 437, 501-02 (1989) [hereinafter OLP REPORT].
172. The Court claimed that the FBI had operated under similar rules, but the claim was transparently flawed. See OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, REPORT TO THE ATTORNEY GENERAL ON THE LAW OF PRETRIAL INTERROGATION 48-49 (1986), reprinted in 22 MICH. J.L. REFORM 437, 501-02 (1989) [hereinafter OLP REPORT].
173. Rhode Island v. Innis, 446 U.S. 291, 304 (1980) (Burger, C.J., concurring).
174. 120 S. Ct. at 2336.
175. Id.
176. Id.
177. See supra notes 143-145 and accompanying text.
178. See The Clinton Justice Department's Refusal to Enforce the Law on Voluntary Confessions: Hearings . . . of the Senate Comm. on the Judiciary, 106th Cong. (1999) (statement of Gilbert G. Gallegos, President of the Grand Lodge, Fraternal Order of Police) ("Sometimes we hear the claim that police have 'learned to live with Miranda' as an argument against any change in the rules used in our courts. If what is meant by this is that police will do their very best to follow whatever rules the Supreme Court establishes, it is true police have 'teamed [sic] to live with Miranda . . . But if what is meant by this is that police 'live with' and do not care about the harmful effects of these Court rules, nothing could be further from the truth . . . too often these rules interfere with the ability of police officers to solve violent crimes and take dangerous criminals off the streets.").
179. Interview with Timothy Flannigan, biographer of Chief Justice Burger, in Washington, D.C. (Apr. 6, 2001). Part of his reasoning may have been that, contrary to his 1980 position that Miranda should neither be "disparaged" nor "extended," the Court had in fact extended Miranda in various ways, including in particular the line of cases originating with Edwards v. Arizona, 451 U.S. 477 (1981), which significantly restricts the ability of law enforcement officers to question suspects. It is this line of cases that has been identified by federal law enforcement agencies as creating the most harmful effects from Miranda. See infra note 188 and accompanying text (noting FBI difficulties under Edwards line of cases).
180. See Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. REV. 839, 884-85 (1986).
181. YALE KAMISAR ET AL., MODERN CRIMINAL PROCEDURE: CASES, COMMENTS, AND QUESTIONS 509 (9th ed. 1999); see also Kamisar, Congress, supra note 13, at 951 ("[N]ot all the opinions written in confession cases over the past thirty years have saddened the hearts of Miranda's friends.").
182. YALE KAMISAR ET AL., MODERN CRIMINAL PROCEDURE: CASES, COMMENTS, AND QUESTIONS 509 (9th ed. 1999); see also Kamisar, Congress, supra note 13, at 951 ("[N]ot all the opinions written in confession cases over the past thirty years have saddened the hearts of Miranda's friends.").
183. 451 U.S. 477 (1981).
184. McNeil v. Wisconsin, 501 U.S. 171, 176 (1991).
185. See Arizona v. Roberson, 486 U.S. 675 (1988).
186. See Minnick v. Mississippi, 498 U.S. 146 (1990).
187. See Brief of the Federal Bureau of Investigation's Agents Association as Amicus Curiae, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No. 99-5525); supra note 167 (noting concern of FBI about Edwards). Edwards has been arguably weakened in one small respect. In Davis v. United States, 512 U.S. 452 (1994), the Court held that a request for counsel had to be unambiguous to trigger the questioning cutoff rules once a suspect had waived his right. Here again, however, the empirical evidence suggests that this modification has not been particularly useful for law enforcement. Cassell & Hayman, supra note 168, at 860 (explaining that only 2.3% of cases involved post-waiver invocations of rights, and all of those cases involved suspects who had previously given incriminating information). The three cases involved suspects who had already given incriminating information. Id. See generally William J. Stuntz, Miranda's Mistake, 99 MICH. L. REV. 975, 988 (2001) (discussing infrequency of those who invoke rights after waivers - "Conditional Talkers" in his lexicon).
188. See supra notes 76-78 and accompanying text.
189. Withrow v. Williams, 507 U.S. 680, 711 (1993) (O'Connor, J., dissenting).
190. See 120 S. Ct. at 2347 (Scalia, J., dissenting) (noting politely this unexplained reversal by Justice O'Connor).
191. Cassell Social Costs, supra note 111; Paul G. Cassell & Richard Fowles Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998); Cassell & Hayman, supra note 168. Three additional reasons for believing that Miranda harmed law enforcement are the contemporary reports of law enforcement officers to that effect, see Paul G. Cassell, Reply, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084, 1106-10 (1996); the higher confession rates found in Britain and Canada, see Cassell, Social Costs, supra note 111, at 418-22; Cassell & Hayman, supra note 168, at 876-80; and the decline in innocent suspects who are exonerated through confessions, see Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions - And From Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 551 (1998). These positions, of course, have not been universally accepted by legal academics. Compare, e.g., Schulhofer, Practical Effect, supra note 156, George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 UCLA L. REV. 821 (1996), and John J. Donahue III, Did Miranda Diminish Police Effectiveness?, 50 STAN. L. REV. 1147 (1998), with, e.g., Laurie Magid, The Miranda Debate: Questions Past, Present, and Future, 36 HOUS. L. REV. 1251, 1286 (1999) (book review) ("Professor Cassell's research is important because it does remind us that Miranda imposes a cost on thousands of cases.").
192. Cassell Social Costs, supra note 111; Paul G. Cassell & Richard Fowles Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998); Cassell & Hayman, supra note 168. Three additional reasons for believing that Miranda harmed law enforcement are the contemporary reports of law enforcement officers to that effect, see Paul G. Cassell, Reply, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084, 1106-10 (1996); the higher confession rates found in Britain and Canada, see Cassell, Social Costs, supra note 111, at 418-22; Cassell & Hayman, supra note 168, at 876-80; and the decline in innocent suspects who are exonerated through confessions, see Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions - And From Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 551 (1998). These positions, of course, have not been universally accepted by legal academics. Compare, e.g., Schulhofer, Practical Effect, supra note 156, George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 UCLA L. REV. 821 (1996), and John J. Donahue III, Did Miranda Diminish Police Effectiveness?, 50 STAN. L. REV. 1147 (1998), with, e.g., Laurie Magid, The Miranda Debate: Questions Past, Present, and Future, 36 HOUS. L. REV. 1251, 1286 (1999) (book review) ("Professor Cassell's research is important because it does remind us that Miranda imposes a cost on thousands of cases.").
193. Cassell Social Costs, supra note 111; Paul G. Cassell & Richard Fowles Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998); Cassell & Hayman, supra note 168. Three additional reasons for believing that Miranda harmed law enforcement are the contemporary reports of law enforcement officers to that effect, see Paul G. Cassell, Reply, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084, 1106-10 (1996); the higher confession rates found in Britain and Canada, see Cassell, Social Costs, supra note 111, at 418-22; Cassell & Hayman, supra note 168, at 876-80; and the decline in innocent suspects who are exonerated through confessions, see Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions - And From Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 551 (1998). These positions, of course, have not been universally accepted by legal academics. Compare, e.g., Schulhofer, Practical Effect, supra note 156, George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 UCLA L. REV. 821 (1996), and John J. Donahue III, Did Miranda Diminish Police Effectiveness?, 50 STAN. L. REV. 1147 (1998), with, e.g., Laurie Magid, The Miranda Debate: Questions Past, Present, and Future, 36 HOUS. L. REV. 1251, 1286 (1999) (book review) ("Professor Cassell's research is important because it does remind us that Miranda imposes a cost on thousands of cases.").
194. Cassell Social Costs, supra note 111; Paul G. Cassell & Richard Fowles Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998); Cassell & Hayman, supra note 168. Three additional reasons for believing that Miranda harmed law enforcement are the contemporary reports of law enforcement officers to that effect, see Paul G. Cassell, Reply, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084, 1106-10 (1996); the higher confession rates found in Britain and Canada, see Cassell, Social Costs, supra note 111, at 418-22; Cassell & Hayman, supra note 168, at 876-80; and the decline in innocent suspects who are exonerated through confessions, see Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions - And From Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 551 (1998). These positions, of course, have not been universally accepted by legal academics. Compare, e.g., Schulhofer, Practical Effect, supra note 156, George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 UCLA L. REV. 821 (1996), and John J. Donahue III, Did Miranda Diminish Police Effectiveness?, 50 STAN. L. REV. 1147 (1998), with, e.g., Laurie Magid, The Miranda Debate: Questions Past, Present, and Future, 36 HOUS. L. REV. 1251, 1286 (1999) (book review) ("Professor Cassell's research is important because it does remind us that Miranda imposes a cost on thousands of cases.").
195. Cassell Social Costs, supra note 111; Paul G. Cassell & Richard Fowles Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998); Cassell & Hayman, supra note 168. Three additional reasons for believing that Miranda harmed law enforcement are the contemporary reports of law enforcement officers to that effect, see Paul G. Cassell, Reply, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084, 1106-10 (1996); the higher confession rates found in Britain and Canada, see Cassell, Social Costs, supra note 111, at 418-22; Cassell & Hayman, supra note 168, at 876-80; and the decline in innocent suspects who are exonerated through confessions, see Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions - And From Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 551 (1998). These positions, of course, have not been universally accepted by legal academics. Compare, e.g., Schulhofer, Practical Effect, supra note 156, George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 UCLA L. REV. 821 (1996), and John J. Donahue III, Did Miranda Diminish Police Effectiveness?, 50 STAN. L. REV. 1147 (1998), with, e.g., Laurie Magid, The Miranda Debate: Questions Past, Present, and Future, 36 HOUS. L. REV. 1251, 1286 (1999) (book review) ("Professor Cassell's research is important because it does remind us that Miranda imposes a cost on thousands of cases.").
196. Cassell Social Costs, supra note 111; Paul G. Cassell & Richard Fowles Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998); Cassell & Hayman, supra note 168. Three additional reasons for believing that Miranda harmed law enforcement are the contemporary reports of law enforcement officers to that effect, see Paul G. Cassell, Reply, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084, 1106-10 (1996); the higher confession rates found in Britain and Canada, see Cassell, Social Costs, supra note 111, at 418-22; Cassell & Hayman, supra note 168, at 876-80; and the decline in innocent suspects who are exonerated through confessions, see Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions - And From Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 551 (1998). These positions, of course, have not been universally accepted by legal academics. Compare, e.g., Schulhofer, Practical Effect, supra note 156, George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 UCLA L. REV. 821 (1996), and John J. Donahue III, Did Miranda Diminish Police Effectiveness?, 50 STAN. L. REV. 1147 (1998), with, e.g., Laurie Magid, The Miranda Debate: Questions Past, Present, and Future, 36 HOUS. L. REV. 1251, 1286 (1999) (book review) ("Professor Cassell's research is important because it does remind us that Miranda imposes a cost on thousands of cases.").
197. Cassell Social Costs, supra note 111; Paul G. Cassell & Richard Fowles Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998); Cassell & Hayman, supra note 168. Three additional reasons for believing that Miranda harmed law enforcement are the contemporary reports of law enforcement officers to that effect, see Paul G. Cassell, Reply, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084, 1106-10 (1996); the higher confession rates found in Britain and Canada, see Cassell, Social Costs, supra note 111, at 418-22; Cassell & Hayman, supra note 168, at 876-80; and the decline in innocent suspects who are exonerated through confessions, see Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions - And From Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 551 (1998). These positions, of course, have not been universally accepted by legal academics. Compare, e.g., Schulhofer, Practical Effect, supra note 156, George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 UCLA L. REV. 821 (1996), and John J. Donahue III, Did Miranda Diminish Police Effectiveness?, 50 STAN. L. REV. 1147 (1998), with, e.g., Laurie Magid, The Miranda Debate: Questions Past, Present, and Future, 36 HOUS. L. REV. 1251, 1286 (1999) (book review) ("Professor Cassell's research is important because it does remind us that Miranda imposes a cost on thousands of cases.").
198. Cassell Social Costs, supra note 111; Paul G. Cassell & Richard Fowles Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998); Cassell & Hayman, supra note 168. Three additional reasons for believing that Miranda harmed law enforcement are the contemporary reports of law enforcement officers to that effect, see Paul G. Cassell, Reply, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084, 1106-10 (1996); the higher confession rates found in Britain and Canada, see Cassell, Social Costs, supra note 111, at 418-22; Cassell & Hayman, supra note 168, at 876-80; and the decline in innocent suspects who are exonerated through confessions, see Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions - And From Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 551 (1998). These positions, of course, have not been universally accepted by legal academics. Compare, e.g., Schulhofer, Practical Effect, supra note 156, George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 UCLA L. REV. 821 (1996), and John J. Donahue III, Did Miranda Diminish Police Effectiveness?, 50 STAN. L. REV. 1147 (1998), with, e.g., Laurie Magid, The Miranda Debate: Questions Past, Present, and Future, 36 HOUS. L. REV. 1251, 1286 (1999) (book review) ("Professor Cassell's research is important because it does remind us that Miranda imposes a cost on thousands of cases.").
199. Cassell Social Costs, supra note 111; Paul G. Cassell & Richard Fowles Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998); Cassell & Hayman, supra note 168. Three additional reasons for believing that Miranda harmed law enforcement are the contemporary reports of law enforcement officers to that effect, see Paul G. Cassell, Reply, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084, 1106-10 (1996); the higher confession rates found in Britain and Canada, see Cassell, Social Costs, supra note 111, at 418-22; Cassell & Hayman, supra note 168, at 876-80; and the decline in innocent suspects who are exonerated through confessions, see Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions - And From Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 551 (1998). These positions, of course, have not been universally accepted by legal academics. Compare, e.g., Schulhofer, Practical Effect, supra note 156, George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 UCLA L. REV. 821 (1996), and John J. Donahue III, Did Miranda Diminish Police Effectiveness?, 50 STAN. L. REV. 1147 (1998), with, e.g., Laurie Magid, The Miranda Debate: Questions Past, Present, and Future, 36 HOUS. L. REV. 1251, 1286 (1999) (book review) ("Professor Cassell's research is important because it does remind us that Miranda imposes a cost on thousands of cases.").
200. See. e.g., Controlling Crime Hearings, supra note 152, at 199, 726, 1092.
201. See Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 MICH. L. REV. 1000, 1010-11 (2001); Klein, supra note 7, at 1075-76.
202. See, e.g., Withrow, 507 U.S. at 713 (citing amicus brief from law enforcement agency as a reason for not contracting Miranda).
203. The briefs are available on the Cassell website, supra note 44. The brief from the IACP was nominally "in support of neither party" but was in substance fully supportive of the Fourth Circuit's opinion. Brief of Amici Curiae for Americans for Effective Law Enforcement, Inc., Joined by the International Association of Chiefs of Police, Inc., the National Sheriffs' Association, and the Virginia Association of Chiefs of Police, in Support of Neither Party, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No. 99-5525), available at Cassell website, supra note 44.
204. A brief was filed by individual police officers supporting Dickerson, which also contained two minor law enforcement groups: the Police Foundation and the National Black Police Association (not to be confused with the National Organization of Black Law Enforcement Executives, the far more prominent representive of African-American law enforcement officers). Brief of Griffin B. Bell et al. as Amici Curiae in Support of Petitioner, Dickerson, 120 S. Ct. 2326 (2000) (No. 99-5525). But the attorneys working on this brief were unable to secure the assent of even a single major law enforcement organization for their position, despite the fact (I have been reliably informed) that they called many of the same nationally prominent groups that ultimately supported the Fourth Circuit.
205. Brief for the United States at 34, Dickerson, 120 S. Ct. 2326 (2000) (No. 99-5525).
206. Letter from Senators Orrin G. Hatch and Strom Thurmond to Attorney General Janet Reno (Feb. 15, 2000) (available on Cassell website, supra note 44); see also 146 CONG. REC. S760 (daily ed. Feb. 24, 2000) (statement of Sen. Thurmond).
207. Letter from Robert C. Gleason, Deputy Chief Counsel, Drug Enforcement Agency, to Patty Stemler, Chief, Dep't of Justice Criminal Div., Appellate Section (undated) (available on Cassell website, supra note 44).
208. Letter from Richard A. Fiano, Chief of Operations, Drug Enforcement Agency, to Frank A.S. Campbell, Deputy Assistant Attorney General, Office of Policy Development, Drug Enforcement Agency (Oct. 13, 1999) (available on Cassell website, supra note 44). In a curious attempt to undercut these memos written in the ordinary course of business, the DEA's politically-appointed General Counsel wrote a memo on February 22, 2000 (just two days before the Department's lodging with the Court and after the request from Senators Hatch and Thurmond), that attempted to "clarify" some of the statements made in the earlier memos. Letter from Cynthia R. Ryan, Chief Counsel, Drug Enforcement Agency, to Seth P. Waxman, Solicitor General, Dep't of Justice (Feb. 22, 2000) (available on Cassell website, supra note 44).
209. Letter from Larry R. Parkinson, General Counsel, Federal Bureau of Investigations, to Eleanor D. Acheson, Assistant Attorney General, Office of Policy Development, Drug Enforcement Agency (Oct. 19, 1999) (available on Cassell website, supra note 44).
210. Letter from Senators Orrin G. Hatch and Strom Thurmond to Attorney General Janet Reno, supra note 185.
211. Reply Brief for the United States at 17-18, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No. 99-5525).
212. Letter from Andrew Fois, Assistant Attorney General, Office of Legislative Affairs, Dep't of Justice, to Senator Fred Thompson (Nov. 5, 1997), reprinted in The Clinton Justice Department's Refusal to Enforce the Law on Voluntary Confessions: Hearing before the Senate Subcomm. on Crim. Justice Oversight of the Senate Comm. on the Judiciary, 106th Cong. at 124 (1999).
213. Id.
214. Letter from Senators Orrin G. Hatch and Strom Thurmond to Attorney General Janet Reno and Solicitor General Seth P. Waxman (Apr. 18, 2000) (available on Cassell website, supra note 44).
215. Letter from Solicitor General Seth P. Waxman to General William K. Suter, Clerk, United States Supreme Court (Apr. 20, 2000) (available on Cassell website, supra note 44).
216. Brief for the United States at 19-20, Dickerson, 120 S. Ct. 2326 (2000) (No. 99-5525).
217. See generally Cassell, supra note 1, at 223-25 (criticizing the Department for failing to defend § 3501). Cf. Neal Devins, Asking the Right Questions: How the Courts Honored the Separation of Powers by Reconsidering Miranda, 149 U. PA. L. REV. 251 (2000) (discussing whether courts should have considered the statute without Justice Department prompting); Erwin Chemerinsky, The Court Should Have Remained Silent: Why the Court Erred in Deciding Dickerson v. United States, 149 U. PA. L. REV. 287 (2000) (same).
218. See generally Cassell, supra note 1, at 223-25 (criticizing the Department for failing to defend § 3501). Cf. Neal Devins, Asking the Right Questions: How the Courts Honored the Separation of Powers by Reconsidering Miranda, 149 U. PA. L. REV. 251 (2000) (discussing whether courts should have considered the statute without Justice Department prompting); Erwin Chemerinsky, The Court Should Have Remained Silent: Why the Court Erred in Deciding Dickerson v. United States, 149 U. PA. L. REV. 287 (2000) (same).
219. Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) (plurality opinion).
220. Id. (emphasis added).
221. As the Court's references to "costs" makes clear, the Court's own stare decisis jurisprudence directly supplies an answer to Professor Susan Klein's query as to why data on lost convictions should be relevant to Miranda jurisprudence. See Klein, supra note 7, at 1076 n.204. But Miranda doctrine as well has long made costs and benefits directly relevant. See, e.g., Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986) (describing Miranda as "a carefully crafted balance designed to fully protect both the defendant's and society's interests"). Even Miranda's most ardent supporters seem to agree. See, e.g., Yale Kamisar, The "Police Practice" Phases of the Criminal Process and the Three Phases of the Burger Court, in THE BURGER YEARS 143, 150 (Herman Schwartz ed., 1987) (noting that striking a balance "is the way Miranda's, defenders - not its critics - have talked about the case for the past twenty years"); Schulhofer, Practical Effect, supra note 156, at 505 (agreeing that "the size of a legal problem does matter"); see generally Tracey L. Meares & Bernard Harcourt, Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 J. CRIM. L. & CRIMINOLOGY 733 (2000).
222. As the Court's references to "costs" makes clear, the Court's own stare decisis jurisprudence directly supplies an answer to Professor Susan Klein's query as to why data on lost convictions should be relevant to Miranda jurisprudence. See Klein, supra note 7, at 1076 n.204. But Miranda doctrine as well has long made costs and benefits directly relevant. See, e.g., Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986) (describing Miranda as "a carefully crafted balance designed to fully protect both the defendant's and society's interests"). Even Miranda's most ardent supporters seem to agree. See, e.g., Yale Kamisar, The "Police Practice" Phases of the Criminal Process and the Three Phases of the Burger Court, in THE BURGER YEARS 143, 150 (Herman Schwartz ed., 1987) (noting that striking a balance "is the way Miranda's, defenders - not its critics - have talked about the case for the past twenty years"); Schulhofer, Practical Effect, supra note 156, at 505 (agreeing that "the size of a legal problem does matter"); see generally Tracey L. Meares & Bernard Harcourt, Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 J. CRIM. L. & CRIMINOLOGY 733 (2000).
223. As the Court's references to "costs" makes clear, the Court's own stare decisis jurisprudence directly supplies an answer to Professor Susan Klein's query as to why data on lost convictions should be relevant to Miranda jurisprudence. See Klein, supra note 7, at 1076 n.204. But Miranda doctrine as well has long made costs and benefits directly relevant. See, e.g., Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986) (describing Miranda as "a carefully crafted balance designed to fully protect both the defendant's and society's interests"). Even Miranda's most ardent supporters seem to agree. See, e.g., Yale Kamisar, The "Police Practice" Phases of the Criminal Process and the Three Phases of the Burger Court, in THE BURGER YEARS 143, 150 (Herman Schwartz ed., 1987) (noting that striking a balance "is the way Miranda's, defenders - not its critics - have talked about the case for the past twenty years"); Schulhofer, Practical Effect, supra note 156, at 505 (agreeing that "the size of a legal problem does matter"); see generally Tracey L. Meares & Bernard Harcourt, Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 J. CRIM. L. & CRIMINOLOGY 733 (2000).
224. To be clear, my argument is that the Court should have accepted Congress's factual findings on harm (criminals going free), not that it should have deferred to the congressional determination that interrogations are not inherently coercive. This latter conclusion, a mixed question of fact and law, presents a more difficult case for deference to congressional findings than the purely factual findings discussed in the text. See generally Cassell, supra note 1, at 249 n.355 (collecting authorities on the not-inherently-coercive argument).
225. Cf. Paul G. Cassell, Barbarians at the Gates? A Reply to the Critics of the Victims' Rights Amendment, 1999 UTAH L. REV. 479 (discussing failures of the criminal justice system in recognizing victims' rights).
226. Cf. Kamisar, supra note 7, at 897 (stating that Dickerson basically said, "Let the professors figure it out.").
227. See ee Richard A. Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621, 678 (1996). For a competing view of the evidence on this point, see, e.g., Cassell, supra note 111, at 473-78.
228. Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435, 460 (1987). For competing views of the message sent by Miranda, see, e.g., JOSEPH D. GRANO, CONFESSIONS, TRUTH AND THE LAW (1996); Stephen J. Markman, The Fifth Amendment and Custodial Questioning: A Response to "Reconsidering Miranda," 54 U. CHI. L. REV. 938, 948 (1987).
229. Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435, 460 (1987). For competing views of the message sent by Miranda, see, e.g., JOSEPH D. GRANO, CONFESSIONS, TRUTH AND THE LAW (1996); Stephen J. Markman, The Fifth Amendment and Custodial Questioning: A Response to "Reconsidering Miranda," 54 U. CHI. L. REV. 938, 948 (1987).
230. Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435, 460 (1987). For competing views of the message sent by Miranda, see, e.g., JOSEPH D. GRANO, CONFESSIONS, TRUTH AND THE LAW (1996); Stephen J. Markman, The Fifth Amendment and Custodial Questioning: A Response to "Reconsidering Miranda," 54 U. CHI. L. REV. 938, 948 (1987).
231. For this reason, among others, I have argued for replacing Miranda rather than overruling it.
232. 119 S. Ct. 1849 (1999).
233. Erik Luna, Constitutional Roadmaps, 90 J. CRIM. L. & CRIMINOLOGY 1125 (2000).
234. See Alexander M. Bickel, Foreword: The Passive Virtues, 75 HARV. L REV. 40 (1961). See generally Luna, supra note 207, at 1173-85 (discussing various theories of interbranch dialogue).
235. To be clear, Professor Luna reserves "for another day" the question of whether the Court's "disinclination toward hearing political alternatives can serve as a constitutionally legitimate motivation for judicial decisionmaking and opinion writing." Luna, supra note 207, at 1236 n.543. I want to argue here that, at least in the context of replacements for Miranda, such disinclination is illegitimate, or at least inadvisable.
236. OLP REPORT, supra note 160, reprinted in 22 U. MICH. J.L. REFORM 564 (1989).
237. OLP REPORT, supra note 160, reprinted in 22 U. MICH. J.L. REFORM 564 (1989).
238. See Paul G. Cassell, Miranda's "Negligible" Effect on Law Enforcement: Some Skeptical Observations, 20 HARV. J.L. & PUB. POL'Y 327, 328 (1997) (collecting authorities on this point).
239. Cf. Cassell, supra note 1, at 200-19 (reviewing protracted litigation involved in getting § 3501 before the Supreme Court).
240. Stuntz, supra note 174, at 976.
241. See OLP REPORT, supra note 160, at 99, reprinted in 22 U. MICH. J.L. REFORM 548-49.
242. See OLP REPORT, supra note 160, at 99, reprinted in 22 U. MICH. J.L. REFORM 548-49.
243. See Laurie Magid, Deceptive Police Interrogation Practices: How Far is Too Far?, 99 MICH. L. REV. 1168 (2001); supra Parts IV.A-B.
244. White, supra note 76, at 1220-21
245. Leo, supra note 180, at 1027.
246. Klein, supra note 7, at 1035.
247. Stuntz, supra note 174, at 976.
248. See Cassell, Social Costs, supra note 111, at 486-92.
249. See Stuntz, supra note 174, at 999.
250. See Cassell, Social Costs, supra note 111, at 488-89; Paul G. Cassell, The Guilty and the "Innocent": An Examination of Alleged Cases of Wrongful Conviction from False Confessions, 22 HARV. J.L. & PUB. POL'Y 523, 582-84 (1999).
251. See Cassell, Social Costs, supra note 111, at 488-89; Paul G. Cassell, The Guilty and the "Innocent": An Examination of Alleged Cases of Wrongful Conviction from False Confessions, 22 HARV. J.L. & PUB. POL'Y 523, 582-84 (1999).
252. See Cassell, Social Costs, supra note 111, at 486-98; Cassell & Fowles, supra note 178, at 1130.
253. See Leo, supra note 180, at 1028-29; Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. AND CRIMINOLOGY 429, 494-96 (1998);
254. Schulhofer, Practical Effect, supra note 156, at 503;
255. Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 154-55 (1997).
256. For interesting arguments along these lines, see Friedman & Dorf, supra note 16; DONALD DRIPPS. CONSTITUTIONAL THEORY FOR CRIMINAL PROCEDURE: DICKERSON, MIRANDA , AND THE CONTINUING QUEST FOR BROAD-BUT-SHALLOW (2000) (arguing that videotaping could replace the Edwards rules). My proposed videotape replacement for Miranda also retains parts of the Miranda regime.
257. See Cassell, Social Costs, supra note 111, at 486-98.
258. Another often-discussed alternative to Miranda is the questioning of suspects by magistrates rather than police officers. See AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE 77 (1997); see also Paul G. Kauper, Judicial Examination of the Accused - A Remedy for the Third Degree, 30 MICH. L. REV. 1224 (1932).
259. Another often-discussed alternative to Miranda is the questioning of suspects by magistrates rather than police officers. See AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE 77 (1997); see also Paul G. Kauper, Judicial Examination of the Accused - A Remedy for the Third Degree, 30 MICH. L. REV. 1224 (1932).
260. See Luna, supra note 207, at 1236-38 n.544. The only post-Dickerson response in Congress was the introduction of a bill by Senator Leahy that would have repealed the operative provisions of § 3501, S. 2830, 106th Cong., 2d Sess. (2000). The bill went nowhere in the 106th Congress. Presumably the majority in Congress prefers the approach of § 3501, as evidenced by the amicus briefs in Dickerson, see supra note 130 and accompanying text.
261. 384 U.S. at 467 (emphasis added).
262. Id.
263. Id.
264. 120 S. Ct. at 2336.