On the Bench

JOANNE: In 1963, Gideon v Wainwright said that every defendant had the right to an attorney, even if they couldn’t afford to hire one. And the next year, the Supreme Court ruled in a case called Escobedo versus Illinois that a defendant must be allowed to consult a lawyer if they wanted to while in police custody. That decision also said that a suspect had an absolute right to remain silent.

NATHAN: The Miranda case put those new rights into play. Yes, Ernesto Miranda had been informed that he had constitutional rights, but only after he agreed to confess. He wasn’t told he could have a lawyer present. He also had not been told his rights included the right not to speak with the police.

The court decided 5-4 that the police had a responsibility to explicitly tell a suspect these rights. By this new standard, Miranda’s confession wasn’t considered voluntary and his conviction was overturned.

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JOANNE: Gideon, Escobedo, and Miranda were part of a series of decisions in the 1960s focused on reforming the criminal justice system. The court at the time was known as the Warren Court after its very active Chief Justice, Earl Warren.

RISA GOLUBOFF: Two different arcs of history were converging in the Warren Court’s criminal procedure revolution.

NATHAN: That’s legal scholar Risa Goluboff. She says, that in order to understand the court’s thinking in cases like Miranda, we’ve got to step outside of the court and into two national debates that were in full swing in 1966– one on police and crime, and the other about civil rights.

RISA GOLUBOFF: There had been a belief that legislators write laws and then police officers enforce them, and that there was no gap between the laws on the books and the laws as enforced. And you had major national surveys into policing and the criminal justice system that revealed, actually the police have a lot of discretion. They could decide not to arrest people. They can arrest people who don’t really deserve to be arrested. And that kind of discretion was really rampant.

You know, it’s rampant at the moment of the first interaction. What we would today think of maybe a stop and frisk. And then, it exists at the moment of arrest, and then the moment of charging, and for going to trial, or for allowing for plea bargains. And then, there is discrimination, and discretion, and abuse in the gathering of evidence– so coerced confessions, things like that, right?

And then, that’s what the Warren Court was really embracing in the 1960s, and the Miranda is part of. And the idea there was that guilt or innocence wasn’t the only important aspect of the criminal justice system. The criminal justice system also had to ensure that it was treating people with fairness, with dignity, with equality.

And, I think, forced confessions had been an issue for a long time, making statements without lawyers– so just not having a lawyer. So if you think about Miranda, it only comes a few years after Gideon versus Wainwright where the court required criminal defendants who couldn’t pay for lawyers to be provided lawyers in felony cases. So that’s a big change. And so, Miranda is really part of putting in place safeguards so that the people who are getting processed through the system are not only guilty, or likely guilty, or will be adjudged guilty, but are also receiving all of the rights and procedural protections that our constitution gets interpreted to provide.

NATHAN: But that wasn’t the court’s only concern.

RISA GOLUBOFF: The civil rights movement happens and you get massive arrests of civil rights activists and demonstrators, and people seeing the police as the front line of Jim Crow, seeing the police as oppressors in a way that, you think of the g-men in earlier decades who are heroes and suddenly they don’t look as much like heroes in certain circumstances, as well as the recognition that policing is a civil rights issue, that African-Americans are being policed differently from whites, and that’s something that goes back to the ’40s and beyond. But it really becomes a much bigger issue during the ’60s, as well.

NATHAN: So would you feel comfortable describing the Miranda decision of ’66 as part of the story of civil rights law– that there’s an actual connection between what we more conventionally think about as the rights movement and the Miranda decision?

RISA GOLUBOFF: Absolutely. One, I think the Warren Court clearly understood its criminal procedure revolution as part of the civil rights movement. They understood that policing was racialized. They understood that so many criminal defendants were African-American or people of color. So I do think that they had a sense and they understood criminal justice in the context of race.

NATHAN: Even though this was an Arizona decision you would say?

RISA GOLUBOFF: Yeah, even though. And actually, I mean, when you look at a lot of the criminal procedure cases, they didn’t always have an African-American defendant come out of New York, or Chicago. You know, that wasn’t how it worked. And that’s often the case with the court. The best example I can give of that is Ruth Bader Ginsburg, when she was bringing cases for sex discrimination to create the sex discrimination doctrines that we know today, most of those cases had male plaintiffs.

NATHAN: Interesting.

RISA GOLUBOFF: They were discrimination against men. And she was using them as ways of getting rights for women. I actually think the court found it useful and attractive to make universal pronouncements that the justices knew would redound to the benefit of African-Americans. So they wanted to be making civil rights change, but there were times when they wanted to be able to do it without saying that’s what they were doing.