What happens when no one comes to the defense of defenseless prisoners? Rulings like last week’s decision in Howes v. Field, No. 10-680, where the Supreme Court held that law enforcement questioning of an inmate inside a prison about allegedly criminal events that occurred outside the prison is not necessarily a custodial situation for Miranda purposes. Or, to put it differently, custody is not really custody when it comes to protecting the rights of prisoners.
The result was not a surprise. The Roberts Court has steadfastly chipped away at Miranda. Two terms ago, the Court held, over a vigorous dissent from Justice Sotomayor, that a criminal suspect waives their Miranda rights if they do not expressly speak up to invoke their rights.
While the decision itself was not surprising (and I will get to that in a moment), the lack of amicus support in this case was. I noticed a few months ago that not one public interest group had come to the defense of prisoners in this case by filing a merits amicus curiae brief (the only amicus brief supporting the prisoner was filed by the law firm WilmerHale who is representing a similarly situated defendant granted habeas relief in the court below).
That is a startling omission. Those that follow the criminal cases on the Court’s docket knew this Court could easily use this case to set Miranda doctrine for all prisoners, even on a habeas case. Given that there are roughly 2.3 million prisoners in this country and law enforcement questioning of them inside prisons is ubiquitious, you would have thought that someone would have come to the defense of prisoners in a case involving a fundamental constitutional right.
Simply put, the criminal defense and public interest bar blew it on this one.
The Court did not do much better. One can surely question the effectiveness of Miranda warnings in general. But if we have them, I would think the prison setting is the one place where a suspect probably needs to be reminded of his right to remain silent and the ability to seek an attorney.
In support of his claim that Miranda is not needed during prison questioning because the prison environment does not “magnify” the coercive nature of the questioning, Justice Alito ticked off three propositions.
First, questioning a person who is already serving a prison term does not generally involve the shock that very often accompanies arrest.
Prison days are filled with monotony. A normal day feels very much like the one or hundreds before it. So when a prisoner is called out of his cell or the recreation yard and told that there are some police officers there to talk, it is a shock. Any activity outside the norm is a shock; let alone, law enforcement coming to the prison to “talk” to someone. This is doubly true for many prisoners who, unlike many people in the real world, have never had a pleasant experience with law enforcement, unless you count beatings and arrests (that has not been my experience with law enforcement, but it is for many who lived in more urban areas). From my experience, fear and trepidation are the stock response when a prisoner is called out from their daily routine to talk with law enforcement. Contrary to Justice Alito’s experience with prisoner questioning, these types of situations involve “inherently compelling pressures.”
Second, a prisoner, unlike a person who has not been sentenced to a term of incarceration, is unlikely to be lured into speaking by a longing for prompt release.
Oh, I see, the wily prisoner stereotype: because prisoners have gone through the criminal justice system before they are less likely, than your average arrestee, to be tricked into talking. If that was the case, then why do law enforcement waste the time of going into the prison to question a suspect? It’s because they talk. And talk, talk, talk. People need to remember that, generally speaking, prisoners are uneducated and don’t always think rationally. This is the reason why many talk and confess, some even do it when they are innocent.
Justice Alito thinks that a prisoner cannot be pressured to talk if they cannot leave confinement, anyway. But there is huge incentive for prisoners to cooperate with law enforcement. Not every form of confinement is the same; there are various levels of even the worst hells. For example, living in general prison population (where there is access to tv, telephones, outside recreation, buying decent food at the commissary, and the like) is much preferrable to solitary confinement. During my prison stay, I actually watched prisoners be taken to solitary for refusing to talk to FBI agents, state police, and, of course, prison guards. Believe me, there is a very real incentive for prisoners to cooperate so they can stay in general population and on the good side of prison staff. As a result of this environment, there is an even greater potential for trickery and coercion during questioning.
Third, a prisoner, unlike a person who has not been convicted and sentenced, knows that the law enforcement officers who question him probably lack the authority to affect the duration of his sentence.
Once again, this claim simply is not reality. Prisoners do not generally know that the law enforcement officer questioning them cannot affect the duration of their sentence. And they surely do not comprehend that the officer is above affecting the quality and comfort of their sentence. Because–and this makes all the difference–they actually can. As I said before, I have witnessed federal prisoners sent to the hole for not speaking with an FBI agent there to question them. Prisoners know this. And law enforcement know this, too. Sure, they might tell the prisoner that he is free to terminate the questioning at any time and return to his cell, but they are making that claim with a smile, knowing full well that they have, at the very least, the implicit power to affect the confinement of prisoners in ways that police officers in the streets cannot.
Questioning individuals in an already custodial situation has all the hallmarks of coerciveness that normally constitutes “custody” for purposes of Miranda. It is a shame that the Court’s opinion does not reflect the realities of the situation. That being said, I don’t fault the Court nearly as much as I fault the bar. Justice Alito cannot possibly imagine walking in the shoes of a prisoner yanked out of his cell to be questioned by an FBI agent. It was up to public interest groups and the bar to provide that prospective. They failed to do so and now over 2 million prisoners will suffer the consequences.