Miranda Custody and the Cost of Dishonesty

Posted by Sherry F. Colb

In my column for Justia's Verdict this week, part 1 in a 2-part series, I take up the recently decided Supreme Court case of Howes v. Fields.  In Fields, the Court held that a suspect could be incarcerated in jail but nonetheless be characterized as free of custody for purposes of Miranda v. Arizona. such that police could interrogate him for hours without first giving him warnings.  In the two parts of the column, I suggest that Fields represents a major departure from earlier case law and from the underlying objectives of Miranda.  In this post, I would like to focus on a phenomenon exemplified by Fields but not unique to the area of custodial interrogation:  the use of words to obscure rather than expose the truth.

The word at issue in Fields is "custody."  Colloquially, "custody" can mean anything from being under arrest to living with one's father after one's parents divorce.  In the Fifth Amendment/Miranda area, however, the word "custody" has always been narrower than its colloquial usage.  It has meant a substantial loss of freedom that diminishes an individual's ability to exercise her rights in the absence of support.  A suspect placed under arrest is in custody and accordingly in need of something -- like the famous Miranda warnings -- to remind him of his rights, to clarify the consequences of failing to invoke those rights, to reassure the indigent suspect that his poverty will not deprive him of those rights, and to guarantee that no suspect will be penalized for asserting them.

In Fields, the Supreme Court -- continuing a project that it started in Maryland v. Shatzer, as discussed (by yours truly) here -- decided that a person could be in jail or prison and nonetheless remain free from "custody," under Miranda.  The Court could have taken a different tack but reached the same result.  It might have ruled, for example, that suspects in custody are no longer entitled to warnings, thus overruling Miranda  itself.  Why might the Court instead maintain that suspects in custody are entitled to the warnings prior to interrogation, but define defining "custody" as excluding the circumstances of Randall Fields, a man serving a jail sentence?  And why do I have a problem with the Court's choice, apart from the substantive result itself?

My answer to both questions is the same.  I cannot know the motives of the Justices, but one reason that a court might want to maintain the Miranda precedent while contorting the definition of "custody" to exclude incarcerated inmates, is to have its cake and eat it too.  Such a court might enjoy the good will generated by the fact that we have on the books a set of rights enjoyed by every suspect placed in custody, a mark of civilization, progress, and respect for individual autonomy.  And such a court can simultaneously enjoy the fruits of custodial interrogation in the absence of warnings -- confessions that will help ensure convictions.

As the Court asserts, "[c]onfessions voluntarily made by prisoners in other situations should not be suppressed. Voluntary confessions are not merely a proper element in law enforcement, they are an unmitigated good, essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.”

Furthermore, and maybe most importantly, the Court -- by deciding the case in the way that it did -- can perpetuate the fiction that people who live in American prisons are experiencing a tolerable existence.  Most of us do not see prisoners in their incarcerated setting, after all, so the Supreme Court can reassure us about the life "inside" by saying, as it did in Shatzer that "[i]nmates in these facilities generally can visit the library each week, have regular exercise and recreation periods, can participate in basic adult education and occupational training, are able to send and receive mail, and are allowed to receive visitors twice a week." (internal citations omitted).  Notably, the Court in Shatzer was able to claim of prison life that "[t]he 'inherently compelling pressures' of custodial interrogation ended when [Shatzer] returned to his normal life."  To suggest that day-to-day existence inside a prison is in any way a "normal life" is to offer a comforting lie.  And this is exactly what I find disturbing about the Court's approach.

The Court, in similar fashion, years ago defined "voluntariness" in the criminal procedure context as a word that must itself take need into account:  "'voluntariness' has reflected an accommodation of the complex of values implicated in police questioning of a suspect. At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws." (internal citation omitted).  Though we might expect need to play a role in legal analysis of whether an investigation method is acceptable, it is somewhat surprising to have it included in the very definition of the word "voluntary."  If we need it very much, would that mean that torturing a suspect for information or for consent to a search can produce a "voluntary" statement or consent?  By allowing need to infiltrate the definition of voluntariness, we are able to coerce people when we need to do so, without even having to acknowledge what is going on, that in this country, we may now use violence to extract confessions or consent from a suspect's lips.

And one other common and important misuse of language occurs outside the criminal procedure area altogether:  it is in our use of the word "necessary" in discussions of animal cruelty.  Almost everyone, including people who produce and consume the products of animal agriculture, would agree with the statement that it is morally objectionable to inflict "unnecessary" suffering on animals.  Yet the word "unnecessary" means something far narrower in this area than it would in honest moral discourse.

As Rutgers Professor Gary Francione has argued persuasively in numerous books and blog posts, "unnecessary" violence against animals, in common parlance, has been defined as "unnecessary to producing the particular product that I produce or consume."  That is, "necessary" infliction of suffering includes such routine farming practices as branding a cow's skin with a burning iron, pulling  a baby pig's teeth out of his mouth and cutting off his tail and testicles, all without anasthesia.  It includes slaughtering billions of young animals and separating mothers from their children and slaughtering the children within months of their birth -- a routine part of what dairy means.  And it is true that one cannot produce the nearly-200 pounds of meat, poultry, and fish, and the more-than-600 pounds of dairy that the average American consumes in one year, let alone the enormous quantities of eggs and wool and leather, without inflicting unimaginable suffering on sentient, innocent animals.  If people choose to consume such products, then most of the animal suffering inflicted is "necessary" to the enterprise of satisfying consumer demand.

Like "custody," however, "necessity" means something, and we rely on the real meaning of the word to identify when to engage our conscience and when to turn it off.  For example, if parents have a sick child who needs medicine injected in his arm, the pain accompanying the injection is "necessary" pain, and it is pointless to wring our hands about it.  On the other hand, if parents have a healthy child whose genitals they wish to remove for firmly-held cultural or aesthetic reasons, we understand the accompanying mutilation as "unnecessary" suffering that amounts to child abuse.

In conducting an analysis of "necessity," we ordinarily consider not only the fit between means and ends but the significance and worth of the specific ends themselves.  In constitutional analysis, for instance, strict scrutiny requires that a measure be necessary to a "compelling" interest, not simply necessary to whatever interest one can articulate.

Some would respond that they agree with me about custody and voluntariness, because they are liberals on questions of criminal procedure, but that they disagree with me about the consumption of animal products.  People, after all, need to eat and clothe themselves, so the interest in eating and wearing animal products is an elevated one, they might argue.  I would ask them to consider the following faulty syllogism, taken from Love and Death:  "All men are mortal; Socrates is a man; therefore, all men are Socrates."  Notice how closely this resembles the syllogism on which the above necessity argument about animal-based food is premised:  "Humans need food; animal products (including the flesh and secretions of slaughtered animals) are food; therefore, humans need animal products."  The conclusion simply does not follow.

I hope that in discussing topics of great importance, we can try to use language in an honest fashion, even if it makes us uncomfortable.  Doing otherwise allows us to continue to do what we have always done, but at a cost -- to us, to those against whom we act, and to the truth itself.  People in prison or jail are in custody, coerced statements and consents that we really need are still not voluntary, and the consumption of animal products is not necessary.