On Justia's Verdict today, you can read the second of a two-part series in which I analyze the Supreme Court's recent decision in Howes v. Fields, holding that a suspect serving jail time may be interrogated by police without receiving the Miranda warnings, because being incarcerated does not necessarily qualify as "custody" for purposes of triggering an entitlement to warnings. I take the position that this ruling represents a departure from both the precedents and the underlying philosophy of Miranda v. Arizona.
In the Dorf On Law blog post that appeared here last week, I argued that to suggest that a person can be in jail but not in custody is fundamentally dishonest in ways that anesthetize our conscience against reacting to what may in truth be grave wrongdoing, a function served by dishonest language in other contexts as well, including the use of the word "necessary" in describing practices required to satisfy consumers' demand for animal-based products such as dairy, eggs, fish,and meat.
In this post, I want to call attention to an interesting disparity between how people with right-leaning and left-leaning political alignments, respectively, view the criminal justice system in two seemingly similar contexts. One context is the interrogation of a detained criminal suspect awaiting trial or serving a sentence. The other is the arrest of a person suspected of committing murder.
As we see in Fields, the Supreme Court expects criminal suspects who are incarcerated to feel free to assert their rights and resist the interrogation efforts of law enforcement officials. Randall Fields, for example, was serving a jail sentence at the time that he was brought to an interrogation room and questioned by armed officers for at least five hours into the night. Yet, because of an assortment of facts -- including that the officers who interrogated Fields did not physically restrain him and that they told him he could return to his cell -- their interrogation of him did not, in the Court's opinion, impose the sort of pressure experienced by suspects in "custody" and thus triggered no obligation on the part of the officers to provide the warnings.
If Randall Fields felt anything but free to cut off questioning at any time, it was his own internal, subjective experience that was to blame rather than the fact that he was incarcerated and underwent prolonged questioning about a serious criminal offense. The officers were accordingly not required to notify him of his rights.
Though the U.S. Supreme Court's views here do not entirely track that of right-wing ideologues, there is substantial overlap, and the Court's resolution of the Miranda issue in Fields is generally in keeping with a characteristically conservative, "tough on crime" approach. Liberals, on the other hand, have found the Court's decision in Fields disappointing and regard the suspect's alleged freedom to cut off questioning illusory.
Turn now to the "Stand Your Ground" ("SYG") laws of the sort that Florida has. These laws have lately come into the news because after George Zimmerman shot and killed seventeen-year-old Trayvon Martin last month, Zimmerman managed to avoid being arrested on the spot for the homicide, an outcome for which the police have cited the SYG law.
For this post, I will put to one side the argument that the SYG law did not in fact dictate that police allow George Zimmerman to remain free after he killed an unarmed Trayvon Martin. Whatever one might think of SYG laws, my reading of the one in Florida does not strike me as prohibiting the arrest of George Zimmerman under the circumstances. Nonetheless, the police and Florida prosecutors evidently understand the law to do precisely that, and the the number of Florida homicides deemed "justifiable homicides" since passage of the SYG law has reportedly tripled as a result. This understanding, in turn, means that when a suspect says that (a) he felt scared of being killed by another civilian, and that (b) notwithstanding his fear, the civilian chose to remain the presence of the feared civilian and even to follow the latter to avoid losing sight of him, then the suspect was entitled to use deadly force against the civilian rather than, for example, choosing not to follow the feared civilian at all.
Assume that the Florida law -- a law that, like the twenty-three other SYG laws, reflects successful lobbying efforts by the right-wing American Legislative Exchange Counsel ("ALEC") -- protects the use of deadly force under these circumstances. This means that if a person feels afraid of being killed by another person, regardless of whether the other, feared person said or did anything suspicious to reasonably give rise to such an extreme state of fear, the law is prepared to honor the fear of the frightened person even to the point of protecting his right to pursue his target and use deadly force. The police, in turn, must defer to the asserted fear of the suspect and overlook the circumstances that suggest that there was nothing for the suspect to have legitimately feared. Police must refrain from arresting the man who first pursued and then killed an unarmed civilian, because the man asserts that he felt scared.
Note the juxtaposition between Randall Fields and George Zimmerman: a prisoner in an interrogation room with armed officials who interrogate him for five hours is presumed to be fully capable of asserting his right to remain silent (and retreat to his cell). A free civilian on the street who sees a "scary" person is, by contrast, presumed to have a legitimate fear for his life, despite the fact that he not only has the option of retreating but can actually just stop following the source of his fear, as he was specifically advised that he could do by a police operator whom he had called to report his fear in the first instance.
Police need not concern themselves with the fear experienced incarcerated convicts confronting armed interrogators for hours into the night. But police may not even reject the assertions of a free person chasing and then gunning down a skinny teenager who allegedly looked suspicious. What distinguishes the two cases, for conservatives who favor such potentially inconsistent outcomes?
One possible distinction is that in one case, Fields, the suspect in question was afraid of the government, and in the other, the suspect was afraid of a civilian. This difference should not help George Zimmerman, however, because the premise of the Court's decision in Fields is that suspects may reasonably fear the police in some circumstances (e.g., when police place them under arrest) but not in others (when they are seasoned prisoners, used to jail, and no longer shocked by it). Similarly, we might expect that suspects could reasonably fear other private people in some circumstances (e.g., when the private people are visibly armed and chasing them) but not in others (when the private people are walking and then running away from them).
In both cases, in other words, a suspect allegedly felt fear and then acted on that fear (in one case, by killing a child, and in the other, by reluctantly providing self-incriminating statements to police during a five-hour interrogation). Law-and-order conservatives accept the first one's fear but reject the second's. Criminal procedure liberals, on the other hand, reject the first one's fear but accept the second's. Why?
My suspicion is that people, including judges, scholars, and others who take a position in these cases, find themselves identifying with one or the other protagonist/suspect in the two dramas but not the other. Liberals identify with the suspect in Fields, because they can imagine a decent person finding himself behind bars for a crime that he either did not commit or that does not merit incarceration. They imagine themselves in Fields's shoes and find the notion of long, unwarned interrogation invasive and oppressive. At the same time, they do not identify with George Zimmerman, because they either reject his claim of fear or believe that if he was scared, he should not have chased Trayvon Martin. While Fields might have felt unable to retreat from the police, in other words, George Zimmerman could easily have done something short of retreating by remaining in place, yet he chose instead -- with the law's apparent protection -- to pursue and kill.
For law-and-order conservatives, on the other hand, Randall Fields was in prison and therefore almost certainly belonged there. As such, he had no reason to be afraid, because whatever conditions prevailed in prison were just and fair conditions, and he would have had the opportunity to understand that truth after living there for a while. He accordingly did not need any warnings and could easily have asked to return to his cell if he did not want to answer questions. Conservatives, in other words, identify with the police in this circumstance and presume that the police were decent, law-abiding people who treated Fields appropriately and could have given rise to no legitimate fear on Fields's part. In George Zimmerman's case, by contrast, some conservatives may identify with his fear of teenagers in hooded sweatshirts who seem out of place and want to do something about it.
To state the differing identifications is to highlight an important fact about the sorts of debates that liberals and conservatives tend to have: the role of state action, even within the criminal justice system, is less important than it may seem. Randall Fields -- in jail for disorderly conduct and wishing he were read Miranda warnings by his interrogators -- is a private person. George Zimmerman -- calling the police to report a "suspicious" character and then pursuing his prey and shooting him dead in "self defense" -- is also a private person, one who wishes not to be arrested for ending a young man's life.
Neither liberals who side with Fields and against Zimmerman nor conservatives who side with Zimmerman and against Fields can claim to be "rugged individualists," because they oppose the government's intrusion on individual freedom in only one of the two cases. What distinguishes the two situations, however, concerns me greatly. In both instances, someone exercised power over someone else who failed to successfully resist that exercise of power: Randall Fields submitted to police interrogation, indicated his displeasure in an unassertive manner (by saying that he did not want to continue to talk to the deputies), and ultimately provided a confession. George Zimmerman, on the other hand, responded to his fear by pursuing and killing the man who made him afraid. Randall Fields acted in a stereotypically submissive fashion, while George Zimmerman behaved in a dominant, stereotypically macho fashion.
Why does this trouble me? I worry about what I regard as an inclination to identify with the character who responds to his own fear by lashing out violently. People may imagine themselves feeling nervous after seeing someone on the street whom they fear (perhaps out of racism, perhaps not) and fantasize about turning the tables and making the scary person run for his life. That fantasy of triumph is fine as fantasy. But the reality is people will regularly experience fear without being in actual danger -- our danger-detection circuitry, in other words, has a high rate of "false positives." This is one of the reasons that the common law historically asked private individuals to retreat, if it was safe to retreat: it was not because the threatening criminal is entitled to dictate where the frightened people go, but because of the potentially enormous chasm between the fear in the mind of the would-be vigilante and the reality on the street.
To take a more nuanced approach to the stories of Randall Fields and George Zimmerman is to understand that each of them had a perspective and a set of fears and assumptions that played a role in determining their behavior. I do not fault either man for feeling scared -- they felt what they felt, and who am I to condemn an emotional state? Indeed, if George Zimmerman had felt scared and crossed the street when he saw Trayvon Martin, some would consider his behavior rude, but we ought to be prepared to tolerate overly-self-protective but insensitive behavior from an anxiety-ridden person. Deadly force, on the other hand, should require something more.
Fields's approach to fear in the interrogation room -- when in doubt, submit to authority -- poses far less of a threat to the public safety than Zimmerman's approach to fear on the street -- when in doubt, chase down and shoot to kill. To approve of Zimmerman's behavior (or of a law that would treat it as legitimate) is to embrace violence as the preemptive antidote to fear, an embrace that brings us that much closer to a Hobbesian state of nature.
Posted by Sherry F. Colb