Last week, I happened to read the latest article from Professor John Stinneford of the University of Florida Law School. The article is called “The Illusory Eighth Amendment,” and I was expecting another one of Stinneford’s important Eighth Amendment pieces. (I, like Larry Solum and probably other originalists, have had my view of the Eighth Amendment substantially influenced by Stinneford.)

What I did not expect, however, is that part of the article is actually a very interesting discussion and critique of Miranda v. Arizona. Miranda is traditionally thought of as a “prophylactic” decision — a case where the Supreme Court intentionally created a rule that swept much broader than the Constitution itself, so as to ensure that the constitutional right was adequately protected. Indeed, Miranda is probably the paradigm example of a prophylactic decision.

What Stinneford argues is that this is not actually how the Court’s reasoning in Miranda works. For Miranda to be a prophylactic rule, the Court would have to 1, have a basic sense of what the regular rule is, and then 2, create a second rule that would be more protective than that. But the Court actually flirts with at least three different theories of what the Constitution itself protects, and Miranda underprotects two of them. In other words, thinking of Miranda as prophylaxis may give it too much credit.

From the article:

The truth of the matter is that the Supreme Court in Miranda did not particularly care what the term “compelled” means. The Court was interested in enforcing its own instrumental concerns, not those embodied in the constitutional text, and therefore, it used implementation as a substitute for interpretation. For more than thirty years prior to Miranda, the Court had tried to find an effective way to regulate police interrogation, first through the Due Process Clause, then through the Fourth and Sixth Amendments, and finally through the Fifth Amendment privilege against compelled self-incrimination. The Court did not like the fact that police sometimes used brutality or improper pressure. But it also did not like the fact that the process disadvantaged ignorant, weak, and poor defendants. The Court also disliked the fact that wealthy (often white) defendants with the money and presence of mind to hire an attorney tended to do better than poor (often black or Hispanic) defendants who did not. Some of these concerns revolved around the idea of compulsion, but some revolved around a more general concern for societal power disparities and fairness.

For this reason, the Miranda Court was much more interested in the “procedural safeguards” it was creating than in interpreting the Constitution. By requiring police to warn suspects of their right to silence, of the fact that their statements would be used against them, of their right to counsel, and of the fact that an attorney would be appointed if they were indigent, the Court sought to “level the playing field” not only between the suspect and the police, but between poor, ignorant suspects, and wealthy, knowledgeable ones. The hope was that these warnings would not only reduce the incidence of police brutality and improper pressure, but would make
the system fairer generally. This was a noble goal, and one that was in some ways achieved. But it was not built on an interpretation of the term “compelled.” This
reality has had several serious effects on Miranda’s legacy.
[I]n Miranda, the Court flirted with the idea that certain kinds of pressure tactics and trickery might constitute compulsion, but never quite reached this conclusion. The Court also flirted with the idea that custodial interrogation itself might constitute compulsion because of the pressures associated with custodial interrogation, but never quite reached this conclusion. Because the Court never held that these practices constituted compulsion (and indeed, never determined what “compelled” means), many of the practices disliked by the Miranda Court are still used today. As long as the police give the requisite warnings and obtain the requisite waiver, they can still keep the defendant alone in a room and question him for hours, using psychological pressure and trickery to induce a confession.

Worth a read, even if you’re not interested in the Eighth Amendment.