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A Vanishing Miranda


One of the few rights prisoners do not give up upon incarceration is that of due process. At least, this used to be the case. On February 20th, in Howes v. Fields, the United States Supreme Court ruled that prisoners do not have the right to be Mirandized even when being questioned about events outside the prison. For the rest of us, the ruling should serve as a warning that Miranda rights are being eroded at the edges through technicalities.

The Miranda warning is a notification to a suspect in custody of his relevant constitutional rights. A typical Miranda wording is,

You have the right to remain silent. Anything you say can and will be held against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford an attorney, one will be appointed for you.”

Miranda ensures that the detainee is familiar with his Fifth Amendment right against self-incrimination and his Sixth Amendment right to legal representation.

The Miranda warning became an aspect of American law and police procedure in response to the landmark 1966 United States Supreme Court decision, Miranda v. Arizona. The case concerned a confession elicited from Ernesto Arturo Miranda that the police deemed voluntary. By contrast, the confession was viewed as involuntary by Miranda himself, civil-rights activists, and ultimately the Supreme Court. The court concluded the confession was not admissible as evidence because Mr. Miranda had not been advised of his rights. The court stated, the very fact of custodial interrogation exacts a heavy toll on individual liberty, and trades on the weaknesses of individuals.

Unless a detainee waives his rights, there are (or were) only three other circumstances in which the Miranda ruling does not apply: routine booking and processing when the questions are not incriminating; the gathering of internal jailhouse intelligence, for example by a policeman posing as a cellmate; and during public-safety emergencies when the information sought could end the danger. Now a fourth exception has been added by the Supreme Court: a prisoner need not be Mirandized even when being questioned about events outside the prison, because being in prison does not constitute being in custody. In the courts 63 majority opinion on Howes, Justice Samuel Alito wrote, Imprisonment alone is not enough to create a custodial situation within the meaning of Miranda.

An editorial in the New York Times (March 6) stated bluntly that the courts majority makes it more likely that the police will now try to define custody in a way that circumvents the spirit and principle of the Miranda rule. Oil has been applied to an already slippery slope.

Background of Howes v. Fieldss

In December 2001, Randall Lee Fields was serving a 45-day sentence in a Michigan jail for disorderly conduct when sheriffs deputies took him into a conference room for interrogation. The interrogation started some time between 7 and 9 p.m. and lasted five to seven hours. The questioning concerned a crime that was unrelated to his imprisonment.

Although Fields was told he could leave, he was not Mirandized and, so, might not have known of his right to remain silent or to have an attorney present. After being questioned for what Fields claimed was seven hours, he confessed to the sexual assault of a minor. In 2002, he was convicted of criminal sexual assault and received a 1015 year sentence.

Fields appealed the conviction on the grounds that his confession should have been inadmissible in court because he had not been Mirandized. The Michigan Court of Appeals upheld the conviction. Even though it determined that Fields had been in custody, the Miranda warning had not been necessary because Fields had been told that he was free to leave the conference room and return to his cell but he never asked to leave.

The U.S. Court of Appeals for the Sixth Circuit reversed the lower-court finding and ruled both the confession and conviction to be invalid. The Sixth Circuit rejected the lower courts decision largely due to its skepticism on whether Fields knew the nature of the interrogation, his rights, and that he was free to leave. The court stated,

Fields was not advised of where he was being taken or for what purpose. Fields was not read his Miranda rights but was told that if he did not want to cooperate he was free to leave the conference room at any time. Leaving the locked conference room would have taken nearly twenty minutes, as a corrections officer would have had to have been summoned to return Fields to his cell. Fields did not ask for an attorney or to go back to his cell. However, he told the officers more than once that he did not want to speak with them anymore.

(In fairness to the deputies, Fields was told more than once that he could leave; Fields maintains that he did not feel free to leave.)

The Sixth Circuit also based its ruling on precedent, specifically on the 1968 Supreme Court Case, Mathis v. United States, which it cited extensively as the applicable law. The case involved a prisoner who was questioned by an IRS agent without being told that anything he said could be used against him or that he had a right to remain silent and to have counsel. Various statements were then used against him in a criminal trial.

Citing the Mathis case, the Sixth Circuit found that a Miranda warning is required whenever an incarcerated individual is isolated from the general prison population and interrogated about conduct occurring outside of the prison.

Howes v. Fields Ruling

Unlike the preceding cases, the Supreme Court decision in Howes v. Fields revolves around the concept of what constitutes being in custody. It may seem laughable to argue that a prisoner is not in custody, but six Supreme Court judges did precisely that, at least for Miranda purposes. Justice Alito expressed their reasoning. He based the rejection of custody on three points:

First, interrogating a prisoner does not involve the shock that very often accompanies arrest. A person who is cut off from his normal life and companions and abruptly transported from the street into a police-dominated atmosphere may feel coerced into answering questions. But an imprisoned person is not suddenly removed from his regular life and therefore does not undergo the shock of arrest.

Second, unlike a suspect being questioned, a prisoner is unlikely to be lured into speaking by a longing for prompt release. A suspect may cooperate due to the pressure of wanting to be released. On the other hand, when a prisoner is questioned, he knows that when the questioning ceases, he will remain under confinement.

Third, unlike a suspect in custody, a prisoner knows that the law enforcement officers who question him probably lack the authority to affect the duration of his sentence. Thus, there is little basis for the assumption that a suspect will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of [a] more lenient treatment should he confess.

In other words, the Supreme Court argued that the psychological disadvantages of a suspect in custody, against which Miranda serves as a safeguard, do not encumber a prisoner. And, so, Miranda did not apply.

Justice Ruth Bader Ginsberg wrote the dissenting opinion. She asked, Under what circumstances are Miranda warnings required? Miranda tells us in all settings in which [a persons] freedom of action is curtailed in any significant way. Fields did not invite or consent to the interrogation. That is, he did not have a choice in being taken from his cell to a locked conference room where he was questioned for hours into the early morning.

Nor was Fields told why the interrogation was being conducted. Rejecting the Supreme Courts discussion on whether there can be custody within custody, Justice Ginsburg focused on the wording of the 1966 Miranda ruling,

I would ask, as Miranda put it, whether Fields was subjected to incommunicado interrogation in a police-dominated atmosphere, whether he was placed, against his will, in an inherently stressful situation, and whether his freedom of action [was] curtailed in any significant way.

She concluded, to each I would answer Yes.

She continued, Critical to the Courts judgment is the undisputed fact that [Fields] was told that he was free to end the questioning and to return to his cell. And yet, Fields felt trapped. Although told he could return to his cell if he did not want to cooperate, Fields believed the deputies would not have allowed [him] to leave the room. And with good reason. More than once, he told the officers he did not want to speak with them anymore. He was given water, but not his evening medications. Yet the Court concludes that Fields was in an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.

(Note: Each night, Fields took an antidepressant and, due to his kidney transplant surgery, two antirejection medications.)


The redefinition of what being in custody means is an end-run around the need to inform suspects of their constitutional rights. The purpose of Miranda is to prevent the coerced confessions that can result from long, grueling interrogations.

Arguably, prisoners need more protection from coercion than average people, who have networks of support, such as family, and the financial means to bail themselves out if jailed. And, yet, it is with prisoners that the Fifth and Sixth Amendment rights expressed by Miranda are being eroded to a nub.

The police have long sought to eviscerate Miranda because it ties their hands in interrogation, and they believe it protects the guilty. In recent years, the parameters of police interrogation have expanded at the expense of Miranda rights. For example, in the 2010 Supreme Court case Berghuis v. Thompkins the Court found that remaining silent does not constitute an invocation of the right to silence; the right has to be explicitly invoked. In addition, if a suspect voluntarily answered a question, even after hours of silence, his answer could be considered as a waiver of the right to silence.

Miranda is most vulnerable when tested on a person like Randall Lee Fields. Already a prisoner, he became a confessed child molester and, so, the last man that decent people want to let free on the streets. Who cares if a pedophile is read Miranda rights?

You should. An invisible web connects your rights to those of every wretch who can be denied due process on the grounds that he is wretched. All human beings have inalienable rights, or none of us do. It is precisely by denying rights to those whom society will not defend that the state slowly, slowly erodes the rights of everyone. The redefinition of being in custody the point at which Miranda is triggered is an ominous trend. Worse still is the fact that the highest court in the land has done the redefining.

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).