- The Washington Times - Friday, December 10, 1999

News that the Supreme Court is going to reconsider Miranda protections for criminal suspects has set off a near panic. Not just civil libertarians but law-enforcement officials themselves worry that loosing police from the restraints that compelled them to read criminal suspects their rights “You have the right to remain silent” and more prior to taking a confession would set off a reign of police abuse. “We are clearly seeing that police need to be controlled,” former New York City Police Commissioner William Brattan announced when he got word of the case. “And that living within those controls is very difficult, but that is better than going back to the ‘50s and ‘60s where there were no controls.”
Not to play down concerns about abuse of police powers, the fact is that Miranda isn’t going away no matter what the Supreme Court decides. Congress passed and President Lyndon Johnson signed into law a bill that guarantees it will survive. All the Justice Department has to do is enforce it, something it has so far refused to do.
The so-called challenge to Miranda turns on evidence from a 1997 bank robbery in Alexandria that led law-enforcement officials to the residence of Takoma Park resident Charles Dickerson. Initially he denied taking part in the robbery but subsequently confessed to serving as a getaway driver in a series of robberies. That confession plus a host of evidence in his possession including a handgun and black bag that matched the description of an eyewitness to the robbery as well as solvent used to clean dye-stained money led a federal grand jury to indict him on numerous conspiracy, bank robbery and gun charges.
The suspect subsequently asked the court to throw out the confession on grounds that no one read him his Miranda rights prior to his admission. This was contradicted by the police, but the judge believed the defendant and said that though the confession was voluntary, it still violated the Miranda ruling.
Ironically, the high court may not have been aware its Miranda ruling would wind up as the last word on police conduct and on the standards for admissibility of confessions. The 1966 decision said the Constitution requires no “particular solution” for protecting the Fifth Amendment privilege against self-incrimination. The justices set up the Miranda warnings as a “safeguard” to ensure that only voluntary confessions would be admissible in a trial. But the high court invited Congress and the states to “develop their own safeguards for the privilege, so long as they are fully as effective as [the Miranda warnings] in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it.”
Two years later, Congress did precisely that in the Omnibus Crime Control Act of 1968. Miranda advocates would have trouble distinguishing it from the Supreme Court ruling. In determining whether a confession was voluntary, lawmakers said, the trial judge should take into consideration all circumstances surrounding the confession, including whether the “defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, whether such defendant was advised or knew that he was not required to make any statement and that such statement could be used against him; whether such defendant had been advised prior to questioning of his right to the assistance of counsel and whether such defendant was without the assistance of counsel when questioned and when giving such confession.”
Hence if police fail to abide by any of these standards, a judge may throw out an admission as involuntary. The only difference is that under the legislation, the judge isn’t required to throw it out. That’s what this controversy come down to. The critics aren’t as concerned about police practices as they are about giving federal judges the discretion to pass judgment on them.
The Clinton administration not only has refused to enforce the 1968 legislation, it has actually forced U.S. attorneys to withdraw legal briefs that rely on it. Complained Justice Antonin Scalia, the department’s failure to invoke the provision “may have produced during an era of intense national concern about the problem of runaway crime the acquittal and non-prosecution of many dangerous felons.”
In fairness to the Clinton administration, previous administrations haven’t enforced the 1968 law either. It is time to do so now. This country can protect both the constitutional rights of suspects and general public safety. Congress demonstrated that three decades ago, and the Supreme Court should uphold its power to do so.

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