Making Miranda: What the Famous Warning Tells Us about Police Reform Fifty Years Later

Paula and Andy on the hunt for Ricky Baker

Near the end of Hunt for the Wilderpeople, New Zealand social worker Paula, hot on the trail of the wayward and infamous Ricky Baker, finally captures her ward. “You have the right to remain silent,” she tells Baker, repeating the American police procedural standard to the boy. “That’s more an American thing,” the local constable tells her, demonstrating both Paula’s delusions of law enforcement grandeur and the pervasiveness of American culture, a sub-theme of the film. Over the past fifty years since Miranda v. Arizona (1966), the Miranda Warning has become embedded in the American subconscious and apparently abroad. Paula’s deployment of it in New Zealand only underscores its influence even beyond American borders.

At the time of the ruling in 1966, however, it was greeted by widespread derision. Law enforcement and politicians expressed no small amount of dissatisfaction with the decision. “Enough has been done for those who murder and rape and rob,” North Carolina Senator Sam Ervin exclaimed. The Miranda verdict would embolden criminals and reduce police effectiveness, he asserted. “It is time to do something for those who do not wish to be murdered or raped or robbed,” he argued.[1] Some observers intertwined fears about communism with the results of the case while advocating for the impeachment of Chief Justice Earl Warren.

Fifty years later, amidst calls for police reform in the wake still more police shootings in Charlotte and Tulsa, fears of terrorist attack, and a presidential campaign in which crime in the nation’s cities occupies a central place in the race, a look back at how the ruling came to be and its historical arc offers a couple of important observations for our current moment.

Jerome B. Falk, Cert. Memo: Miranda v. Arizona to Arizona Supreme Court, September 10, 1965 William O. Douglas Papers, Manuscript Division, Library of Congress

Jerome B. Falk, Cert. Memo: Miranda v. Arizona to Arizona Supreme Court, September 10, 1965 William O. Douglas Papers, Manuscript Division, Library of Congress

Not a Great Guy But a Great Case?

The case itself famously involved Ernesto Miranda, an unsavory character who was undoubtedly guilty of rape and sexual assault; William O. Douglas law clerk Jerome B. Falk asserted in a 1965 Cert Memo that Miranda had an “eighth grade education and a history of mental disturbance.” Due to this fact and other circumstances related to the case, Miranda had clearly not understood his right to counsel, an issue the Warren Court took seriously.[2]

american-decades-adps_0001_0007_0_img1661

Miranda on the right, leaving court in Phoenix

Four other cases were attached to Miranda, though being at the top of the register and having the most notorious/compelling backstory, it emerged as the most prominent. The court sought to further define provisions from an earlier court decision, Escobedo v. Illinois (1964), in which suspects under police interrogation were to be informed of their right to legal counsel based on the provisions of the Sixth Amendment—the idea being that preventing defendants access to counsel violated a citizen’s right to a fair and speedy trial.

Much like Ernesto Miranda, the defendant in the 1964 case, Danny Escobedo, proved no innocent either, having probably murdered or been involved in the murder of his brother-in-law, but the police repeatedly refused him access to counsel, thereby invalidating criminal statements made during 14 hours of questioning. If Miranda built on Escobedo, Escobedo built on the 1963 case of Gideon v. Wainwright. The larger point here being two fold: 1) in retrospect Miranda seems a logical extension of these earlier cases and hardly a shot in the dark, and 2) often some of our most important legal precedents have been established on behalf of individuals most observers would agree lacked moral probity. We’ll return to both these points later.

Unlike Escobedo, which hinged on the 6th Amendment protection regarding perceived right to counsel, Miranda depended on the 5th Amendment’s right against self-incrimination. In an early draft of the Miranda opinion, Chief Justice Earl Warren had originally focused on the former until, in a 21 page memo, Justice William J. Brennan suggested that the latter would prove far more persuasive legally. “The line between seeking information and compelling it must be scrupulously observed,” wrote Brennan, “even a little bit of compulsion is too much.”[3] Warren wrote the final opinion, but Brennan guided him along the way. “He feared that Warren had adopted too rigid a solution,” note biographers Seth Stern and Stephen Wermiel, “and left too little room for state legislatures or Congress to devise alternative solutions.”[4]

Justice William J. Brennan, Prints and Photographs Division, Library of Congress

Justice William J. Brennan, Prints and Photographs Division, Library of Congress

Race played a role in earlier drafts, but would ultimately be downplayed in the final opinion. The original draft had included a reference to police brutality toward African Americans; Brennan steered Warren away from this provision. “I wonder if it is appropriate in this context to turn police brutality into a racial problem,” wrote Brennan. “If anything characterized the groups this opinion concerns it is poverty more than race.”[5] Brennan believed any emphasis on race threatened the opinion’s ability to “gain public acceptance.”[6] Justice Hugo Black agreed with Brennan, but also added that Warren’s reference to the South as specifically guilty of discrimination would prove problematic and draw unwanted criticism. “Your reference to the ‘Southern States’ . . . would likely be over-emphasized by many as an indication that what we are doing is to attack the South,” Black wrote Warren. “I do hope … that you will . . . point out more emphatically that third-degree methods are not limited to any racial groups or to any section of the country.”[7]

While other justices helped to hone the final opinion, it would be Warren who more or less drafted what would become known as the Miranda Warning. “Warren rarely drafted in his own hand,” notes biographer Jim Newton. “Although rough, it included the principal elements of what would become the final decision – the requirement that police warn suspects of their right to remain silent, of their right to consult with a lawyer, of their right to have a lawyer provided them if they could not afford one.” Warren misspelled Escobedo (writing “Escobido” instead) in his draft but “it was a solid start.”[8]

Earl Warren, Handwritten notes concerning the Miranda v. Arizona, 1966, Earl Warren Papers, Manuscript Division, Library of Congress

Earl Warren, Handwritten notes concerning the Miranda v. Arizona, 1966, Earl Warren Papers, Manuscript Division, Library of Congress

The case made for strange bedfellows. One of the four other cases attached to the ruling, Westover v. United States involved the F.B.I. In outlining the Miranda Warning, the court adopted the federal standard upheld by none other than non-civil liberties pioneer J. Edgar Hoover. “The standard warning long given by Special Agents of the F.B.I. to both suspects and persons under arrest is that the person has a right to say nothing and a right to counsel, and that any statement he does make may be used against him in court,” Hoover wrote Solicitor General Thurgood Marshall.[9] From his position, civil rights icon Marshall advocated for the government against the Miranda standard, arguing that while defendants deserved a right to counsel, the Constitution did not require the government to “furnish” one.[10] Marshall added that the federal government, and one can assume by extension the states, lacked the resources to provide counsel to every indigent defendant.

Law enforcement officials responded warmly to Marshall’s advocacy. “I don’t write many fan letters,” Tulsa Administration Chief of Police Clinton E. Riggs wrote, “but I want to compliment you on your brief concerning police enforcement officers. I have been greatly concerned with the trend towards prohibiting any questioning of suspected criminals.”[11]

Unsurprisingly, the ruling, issued on June 13, 1966, drew criticism from many quarters, particularly law enforcement officials. Future Los Angeles Chief of Police Bernard Parks, then a rookie officer, argued the cops “were done with effective policing.”[12] Boston’s police chief asserted “criminal trials no longer will be a search for truth, but a search for technical error.”[13]

The average citizen offered opinions that traversed issues related to foreign policy but also crime and race. “I say to you today that if we continue to have directions that protect the suspected criminal and tie the hands of our law enforcement officers—with never a thought to protecting society and the innocent victims of these atrocious crimes—the Russians can take over this country without a war,” wrote one citizen.[14] Others argued the Warren Court had gone too far in protecting minority rights. “[T]he Supreme Court has let the scale of American justice tip so far in favor of a minority group, that the end result is essentially discrimination on the part of the Court against all non-Negro elements of society,” wrote another.[15] Apparently, Warren jettisoning any specific reference to race did not eliminate criticism. Needless to say, the “Impeach Earl Warren” movement gained more momentum as result of the ruling.

Postcard, “Save Our Republic: Impeach Earl Warren,”, October 17, 1966, Hugo L. Black Papers, Manuscript Division, Library of Congress

Postcard, “Save Our Republic: Impeach Earl Warren,”, October 17, 1966, Hugo L. Black Papers, Manuscript Division, Library of Congress

The Ensuing 50 Years

The ruling remained galling to many conservatives, including Associate Justice and later Chief Justice of the Supreme Court William Rehnquist. In 1975, Rehnquist wrote a song for the court’s annual procession of skits parodying the court to the melody of “Angels from the Realms of Glory” that openly mocked the opinion. “Miranda embodied everything that Rehnquist detested about the liberal activism of the Warren Court in the 1960s,” Jeffrey Toobin notes. “Warren and his colleagues had simply invented the requirement to address what they regarded as flaws in the criminal justice system.” Rehnquist and others believed that the ruling “represented a judge-made impediment to the conviction of guilty and likely dangerous criminals.”[16]

Despite Rehnquist’s disdain and public anger over the ruling, popular culture, particularly television police procedurals and films, embraced the Miranda Warning as the embodiment of policing. Justice John Paul Stevens has argued that the warning radically improved the popular image of law enforcement. “In the years, prior to the Miranda decision, it was the ham-handed, bumbling Keystone Kop that most frequently appeared in the movies,” he wrote in his 2011 memoir. “Now however, the police officer is usually and appropriately portrayed as a well trained professional public servant. Today the typical officer is neither a bumbler nor an inquisitor who uses his fists rather than his wits.”[17] The short statement offered a simple summation of law enforcement, a rejoinder to devious criminals finally corralled by hardworking detectives—“a hallmark of American justice,” as Justice Stephen Breyer has reflected.[18]

Even conservatives such as Charles Fried, who served as Solicitor General (1985-1989) under Ronald Reagan, noted that over the years most law enforcement officials and organizations had “learned to live with Miranda, and even to love it.”[19] Former New York City Police Commissioner William Bratton concurred, noting that “no big hue and cry among American police chiefs and officers to do away with Miranda” existed. “It’s an effective control on abuses in the questioning process. It works fine,” he told the New York Times in 1999.[20]

That same year, the Rehnquist-led Supreme Court heard a direct challenge to Miranda in Dickerson v. United States; the ruling illustrated both the effect of popular culture in establishing support for Miranda and its general influence over time. During oral arguments, Justice Stephen Breyer pointed out that “more than two billion people throughout the world” knew the warning, a point that Rehnquist would reluctantly concede. “Miranda has become embedded in routine police practice to the point where the warnings have become part of national culture,” he wrote in the 7-2 majority opinion. Rehnquist refused to agree with Miranda’s reasoning, but “the principles of stare decisis weigh heavily against overruling it now.”[21] Of course, not everyone expressed pleasure with the decision. “Today’s judgment converts Miranda from a milestone of judicial overreaching into the very Cheops’ Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance,” Justice Antonin Scalia dissented with his usual flourish.[22]

Admittedly, in 1968, LBJ signed the Omnibus Crime Control and Safe Streets Act, which trimmed provisions of the law at the federal level. Well before Dickerson, through a series of decisions during the 1970s and 1980s, Rehnquist had “not only limited Miranda’s scope, but also gradually drove a wedge between Miranda and its original constitutional underpinnings,” Roger Parloff wrote in the New York Times. Through these decisions, Rehnquist suggested the warning served as more a “prophylactic” than a “constitutional requirement.” [23] Additionally, the court further refined and restricted the Miranda ruling in 2010. Though all defendants were to be read the warning, they must invoke it. “A suspect who has received and understood the Miranda warnings,” Justice Anthony Kennedy wrote in the majority 5-4 decision, “and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.” In other words, should a defendant fail to sign the form stating that he or she was read his rights and understood them, and then provide damning testimony during questioning, statements derived from the interrogation could be used in court. While some have argued these examples and subsequent rulings have chipped away at the underlying importance of the ruling, one could argue, overall, Miranda largely stands.

The resiliency of Miranda, even with some of its provisions weakened, demonstrates that police are capable of serious reform. Even a former member of the Klan turned Supreme Court Justice, Hugo Black signed on to the deicision. The ruling might have been greeted by howls of disbelief in 1966, but today few citizens would question its viability. If Miranda helped to shape public perceptions of law enforcement, Justice Stevens unequivocally also credited it with actually “improving the quality of police forces across the nation.”[24] Breathless statements proclaiming the end of effective policing never came into being. The Markman report (complied by then Assistant Attorney General Stephen Markman) written two decades after the ruling pointed out only four examples in which guilty defendants walked free due to a Miranda technicality.

Nor should we resist reforms because a suspect, victim, or any individual lacks moral purity. During recent arguments regarding police brutality, a victim’s or suspect’s past and background has often been used to uphold and defend what might be described at the very least as overzealous law enforcement. Michael Brown might very well have been “no angel” as the New York Times pointed out. Yet if Ferguson remains controversial, the entire episode ultimately did reveal a department with so “many constitutional violations” that it needed to scrap its policies and start anew. Moreover, Ferguson demonstrated some of the central problems with policing today; namely the militarization of law enforcement. Whatever one thought or thinks of Brown, one could argue, is really beside the point.

Finally, any doubts that race plays a role in our system of law enforcement really need to be parsed out; indeed, in 1966 at least one justice believed racial discrimination played a part in claims regarding police brutality. That we continue to debate the role of race in our justice system fifty years later suggests the persistence of such inequalities. Perhaps the depth of systematic racism has not or cannot be fully determined but judging from recent events in Tulsa and Charlotte (to say nothing of Philando Castile from earlier this summer and other such incidents) it clearly remains.

Half a century later, Miranda stands as a symbol of “American justice”, but much like the fictional Paula in Hunt for the Wilderpeople, whose pursuit of Ricky Baker suggested inadequacies in New Zealand’s child welfare system, “the right to remain silent” remains an both icon of the possibility of effective police reform and evidence of a persistent flaw plaguing the  American legal system.

Editor’s Note: Please check out the Law Library at the Library of Congress and its online exhibit on the Miranda v. Arizona case: click here.

[1] Jim Newton, Justice for All: Earl Warren and the Nation He Made, (New York: Riverhead Books, 2007), 468-469.

[2] Jerome B. Falk, Cert Memo, September 10, 1965, Box 1357, Folder Cert Memos 800-899 OT 65, William O. Douglas Papers, Manuscript Division, Library of Congress.

[3] William J. Brennan, Memorandum to Earl Warren Re: 759, 760, 761, and 584, May 11, 1966, 6-9, Box 616, Folder 1, Earl Warren Papers, Manuscript Division, Library of Congress

[4] Seth Stern and Stephen Wermiel, Justice Brennan: Liberal Champion, (New York: Houghton, Mifflin, Harcourt, 2010), 238.

[5] William J. Brennan, Memorandum to Earl Warren Re: 759, 760, 761, and 584, May 11, 1966, 13-14, Box 616, Folder 1, Earl Warren Papers, Manuscript Division, Library of Congress.

[6] Seth Stern and Stephen Wermiel, Justice Brennan: Liberal Champion, (New York: Houghton, Mifflin, Harcourt, 2010), 238.

[7] Hugo Black, Letter to Earl Warren, May 18, 1966, Box 617, Folder 3, Earl Warren Papers, Manuscript Division, Library of Congress.

[8] Jim Newton, Justice for All: Earl Warren and the Nation He Made, (New York: Riverhead Books, 2007), 465.

[9] J. Edgar Hoover, Memorandum to Solicitor General from Director F.B.I. Subject: “Interviews and Confessions, Warning of Rights”, March 2, 1966, Box 26, Folder 5, Thurgood Marshall Papers, Manuscript Division, Library of Congress.

[10] Frederic I. Lederer, “Miranda and the Law Today” (1977), Faculty Publications. Paper 1371, http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2404&context=facpubs

[11] Clinton Riggs, Letter to Thurgood Marshall, February 26, 1966, Box 26, Folder 5, Thurgood Marshall Papers, Manuscript Division, Library of Congress.

[12] Newton, Justice for All, 468.

[13] Seth Stern and Stephen Wermiel, Justice Brennan: Liberal Champion, (New York: Houghton, Mifflin, Harcourt, 2010), 239.

[14] Raymond J. Messner, Letter to Hugo Black, June 20, 1966, Box 389, Folder 1, Hugo L. Black Papers, Manuscript Division, Library of Congress.

[15] David Laird, Letter to Hugo Black, June 21, 1966, Box 389, Folder 1, Hugo L. Black Papers, Manuscript Division, Library of Congress.

[16] Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court, (New York: Anchor Books, 2008), 145.

[17] John Paul Stevens, Five Chiefs: A Supreme Court Memoir, (New York: Little, Brown and Company, 2011), 106.

[18] Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court, (New York: Anchor Books, 2008), 146.

[19] Charles Fried, Order and Law: Arguing the Reagan Revolution – A Firsthand Account, (New York: Touchstone Books, 1991).

[20] Roger Parloff, “Miranda on the Hot Seat,” New York Times Magazine, September 26, 1999

[21] Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court, (New York: Anchor Books, 2008), 146.

[22] Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court, (New York: Anchor Books, 2008), 146

[23] Roger Parloff, “Miranda on the Hot Seat,” New York Times Magazine, September 26, 1999, http://www.nytimes.com/1999/09/26/magazine/miranda-on-the-hot-seat.html?_r=0

[24] Stevens, Five Chiefs, 106.

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